ISBA Paralegal Symposium April 2021 www.proteusdiscovery.com
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ISBA Paralegal Symposium April 2021 www.proteusdiscovery.com
Agenda • Speaker introduction • eDiscovery Fundamentals • Processes and workflows • Two document review platforms: Relativity and Everlaw • When contracted document review makes sense
Speaker introductions Ray Biederman, JD Anthony Cozzi, JD CEO, Co-Founder Sr. Project Manager CEDS (Certified eDiscovery Specialist)
What is eDiscovery? • At its core, eDiscovery is the process taken to determine what data is: • Relevant and must be produced to opposing counsel / investigating body • Privileged and does not need to be produced A non-exhaustive sample of common data sources EDRM: Electronic Discovery Resource Model includes cloud, server, and paper-based data
Why do I care?
ABA, FRCP, and Other Guidance • ABA: • Rule 1.1, Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation • Comment 8: …a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…[emphasis added] • California formal opinion: an attorney lacking the required competence for the eDiscovery issues in the case at issue has three options • Acquire sufficient learning and skill before performance is required • Associate with or consult technical consultants or competent counsel • Decline the representation • FRCP: extensive guidance regarding cost, proportionality, and process including Rules 1, 4, 16, 26, 34, and 37
Document Review Platforms • There is no shortage of options • Cloud based or on-prem • From highly-complex to fairly-intuitive • Pricing per user, per matter, per amount of data ingested, and more
Relativity • 800 lb. gorilla. • Very powerful, but very complex (12 certifications available). • Transitioning from server-based to cloud-based (RelativityOne). • Relativity is most adaptable to integrations and add-ons. • Pricing typically occurs per GB/month. • There is an access fee for each user. • Relativity is typically sold through a channel partner. • Strong certification program. • No ability to process and load data on your own without add-on.
Relativity Demo
Everlaw • Everlaw is sold on a Per GB/Month basis. • No per user Fee. • No fees for additional features. • No external connections to third-party applications. • Intuitive interface. • Able to process and load data on your own. • No project managers to call for support.
Everlaw Demo
Contracted Document Review • When to use • Large volume of documents • Intricate issue codes • Leverage machine learning • When not to use • Small document set • Complex privilege calls • If there is no one to manage the process • What questions to ask/how to vet a partner • Location of attorneys • Progress measurables • Communication • End products (decision log, chat functionality) • Flat fee or per document pricing • QC abilities and workflows
DiscoveryMaster – Doc Review Management
DiscoveryMaster – Doc Review Management
New Factors in Document Review • Creation of new technology, maturity of millennials and emergence of Gen Z • Emerging document review issues: • Emojis • Online collaboration tools • Internet of Things (IoT) • Deepfakes
New Factors in Document Review: Emojis • Roughly 8.5 billion texts are sent per day in the U.S., equating to an average of 32 texts per person per day. • Approximately 70% of Americans who text use emojis – an estimated 10% use ONLY emojis. • More than 700 million emojis are used every day on Facebook posts. • Discovery Issues: • Forensic tools don’t always capture emojis • Different platforms (Apple, Android, etc.) can display the exact same emoji in different ways. https://cloudnine.com/ediscoverydaily/electronic-discovery/thinking-like-a-millennial-how-millennials-are-changing-discovery-part-four/
New Factors in Document Review: Emojis • Eric Goldman is attempting to track every U.S. court opinion in Westlaw and Lexis that references emojis. • His 2018 Year-in-Review blog post indicated that there were 53 such cases in 2018, which accounts to over 30% of the 171 such cases he has identified since 2004. • No major substantive rulings on emojis to date, but it’s likely only a matter of time. ⚖️ ⏱️ https://blog.ericgoldman.org/archives/2019/01/emoji-law-2018-year-in-review.htm/
New Factors in Document Review: Collaboration Tools • Definition: web-based apps offering teams the ability to work remotely on the same platform by utilizing services such as instant messaging, to-do lists, file sharing, scheduling, etc. • Examples • Slack • Basecamp • Microsoft Teams • Google Docs https://blog.ericgoldman.org/archives/2019/01/emoji-law-2018-year-in-review.htm/
New Factors in Document Review: Collaboration Tools • Advantages • Can be utilized to streamline workflows and improve productivity. • Can lead to dramatic reduction in email communication. • Can successfully track the progression of work for the duration of one or more projects. https://www.shrm.org/resourcesandtools/hr-topics/technology/pages/collaboration-apps-make-e-discovery-more-difficult.aspx
New Factors in Document Review: Collaboration Tools • Disadvantages • Can be misused to harass co-collaborators. • Many online collaboration tools contain both public and private chat channels, which can make identification and collection of relevant information difficult. • Chat messages and other features are sometimes encrypted and can often be created and deleted in discreet ways. • Not designed for corporate data management or compliance. https://www.shrm.org/resourcesandtools/hr-topics/technology/pages/collaboration-apps-make-e-discovery-more-difficult.aspx
New Factors in Document Review: Collaboration Tools • Discovery Issues: • What counts as a “document” for the purpose of discovery? • Who should be listed as the custodian? • How should legal holds be applied and successfully enforced? • How can information exported from the application be reviewed and utilized? https://www.logikcull.com/blog/case-study-slack-data-wins-the-case
New Factors in Document Review: IoT • Internet of Things (IoT): “The concept of connecting any device with an on and off switch to the Internet (and/or to each other).” • Examples • “Smart Speakers” (Amazon Echo, Google Home, etc.) • “Wearables” (Fitbit, Apple Watch, Garmin) • Cell phones • Coffee Makers • Washing Machines • Headphones • Lamps Forbes, A Simple Explanation of the Internet of Things, May 13, 2014
New Factors in Document Review: IoT • Usage • Research firm Gartner forecasted that 8.4 billion connected “things” were being used worldwide in 2017. • Up 31% from 2016 • Projected 20.4 billion connected “things” in 2020 • Consumer Applications Accounted for 63% of IOT in 2017 Gartner Press Release, February 7, 2017 https://www.gartner.com/en/newsroom/press-releases/2017-02-07-gartner-says-8-billion-connected-things-will-be-in-use-in-2017-up-31-percent-from-2016
New Factors in Document Review: IoT • Discovery Issues • How to access and preserve data? • Potential for falsifying or hacking of the IoT device • Each IoT device may generate its own proprietary data format • How can information exported from the IoT device be reviewed and utilized? https://www.zapproved.com/blog/using-iot-data-challenges/
New Factors in Document Review IoT Example
New Factors in Document Review: Deepfakes • Deepfakes: utilize artificial intelligence to take an existing image, video, or audio file and replace them with fake or misleading content that is difficult, if not impossible, to detect. https://www.logikcull.com/blog/two-ways-to-start-deepfaking-evidence-today-not-that-you-would
New Factors in Document Review: Deepfakes Example
New Factors in Document Review: Deepfakes • Discovery Issues: • How can we keep deepfakes out of productions (and the courtroom)? • While research is currently being conducted to find ways to effectively detect deepfakes, it’s possible that the deepfake technology may be improved at a rate that outpaces the technology designed to detect it. https://www.logikcull.com/blog/two-ways-to-start-deepfaking-evidence-today-not-that-you-would
Resources • EDRM (Electronic Discovery Resource Model) • ACEDS (Association of Certified e-Discovery Specialists) • The Sedona Conference (standards organization with standing groups on eDiscovery) • eDiscovery Today (daily blog published by Doug Austin)
Get in touch Ray Biederman Anthony Cozzi CEO, Co-Founder Sr. Project Manager ray.biederman@proteusdiscovery.com anthony.cozzi@proteusdiscovery.com
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