* A tumblr of offensive stuff overheard at Yale Law. If these are true, then that place sounds horrible. [The YLS Offensive]
* Exactly where is the Arctic National Wildlife Refuge? It turns out the government doesn’t really even know. They’re looking to shift the border and possibly allow more oil drilling. [Breaking Energy]
* How to get your Biglaw career right from the beginning. [Medium]
In Pennsylvania, testifying experts usually are not deposed before trial; typically, their written reports are provided in advance of trial and delineate the substance and scope of their testimony. Attorneys often wish to communicate with their client’s expert and comment on drafts of the reports. Until April 2014, the law was not clear whether these communications were discoverable. This uncertainty made it problematic and potentially perilous for a party’s attorney to communicate with the party’s testifying expert, particularly in advance of the disclosure of the expert’s report. In Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, No. 2014 WL 1688447 (Pa. Apr. 29, 2014), the Justices of the Supreme Court of Pennsylvania took up the issue of the discovery of attorney-expert communications and split 3-3. This left intact the Superior Court’s bright-line rule preventing discovery of attorney-expert communications—a rule now to be applied by Pennsylvania trial courts.
The beginning of a new business, technology and legal inflection point is staring at us, chuckling at point blank. The Internet of Things (IoT) has quickly ascended to be the “new frontier” for technology vendors to explore, customers to consider and the legal community to fear.
But what is the “Internet of Things” really? Depending on who you ask, and who answers… the answer to the riddle appears to be in the shadowy area now linking the once inanimate objects with the animated… and here’s the kicker: with no human interaction whatsoever.
IoT is a development in which everyday objects such as household appliances, light bulbs, coffee machines, automobiles, personal devices and health devices that have network connectivity, allowing them to send and receive data without the need of human interaction.
Today there are around 10 billion internet connected devices in the world. According to Morgan Stanley, by 2020, there will be 75 billion internet connected devices. This huge projected rise in IoT devices strongly suggests we are at a defining moment in technology history. IoT qualifies as a potential inflection point due to the fact that each individual’s personal digital world will be able to interact with the world in general – autonomously. This independent (machine to machine) communication capability will also generate a great deal more data subject to potential federal oversight, litigation (eDiscovery), and data breaches.
The Rise of the Machines
The rise of the IoT is bringing into focus a complicating and costly problem – eDiscovery and litigation hold. An example of the eDiscovery problem that will crop up sooner rather than later; how would you respond to a discovery request to provide data from potentially relevant corporate IoT devices such as the break room coffee maker or refrigerator, the restroom hand dryer, a company supplied FitBit fitness tracker, individual cubicle printers, and smart office light bulbs?
An issue with the above example is that most of these IoT devices won’t have adequate data storage capacity making eDiscovery of these devices especially time sensitive. Imagine trying to place a litigation hold on the log data for a specific floor section’s smart light bulbs?
The universe of potentially relevant information will increase geometrically complicating an already messy collection and review process. As plaintiff’s attorneys (and government agencies) become educated on the discovery potential for the IoT, organizations will need to proactively plan for a more demanding and invasive eDiscovery environment.
The scope of eDiscovery will have to expand. Instead of corporate legal working with just the IT department for eDiscovery planning and response, they may also have to work with facilities maintenance, property management, food service, and corporate carpool management.
The adoption of IoT poses additional questions that will eventually need to be addressed; will companies demand non-IoT devices to reduce the cost and risk during discovery? Will IoT manufacturers be forced to design IoT platforms that can automatically collect log files/data from all corporate IoT devices and secure them under a defensible litigation hold? How much additional storage will be required to store the IoT data and how long should it be retained?
The Future Begins Now
Both corporate legal departments and law firms should proactively develop an IoT expertise to stay ahead of this new eDiscovery challenge.
For those firms issuing eDiscovery requests, care should be taken to:
Build discovery request templates that include all potential IoT discovery targets
Train attorneys on the discovery implications/potential of the IoT
Purchase systems and expertise to analyze IoT data
For those companies and firms responding to discovery requests, care should be taken to:
Create a new discovery policy/plan that includes IoT considerations
Understand and map all IoT devices in their organization
Put systems in place to automatically capture data from these IoT devices
Adopt systems to ensure all IoT data can be quickly found and secured under a defensible litigation hold
Create and apply data retention policies for all IoT data
Purchase systems that can analyze IoT data
Train all affected employees on the importance of eDiscovery and the IoT
The Internet of Everything
The key to eDiscovery in the coming IoT world is to get started now. The IoT is growing quickly and is already catching many organizations unprepared. For those companies and firms that have not yet started to plan for eDiscovery in the IoT, the most effective way to quickly prepare is to partner with a discovery service provider that’s already focused on the potential issues and solutions.
OmniVere provides best-in-class electronic discovery solutions, litigation support & forensics consulting services. OmniVere continues to lead the way in offering flexible solutions to clients throughout the EDRM lifecycle, including compliance measures and data technology consulting. To speak to an OmniVere expert today, please click here.
Kenneth Gary is Senior Vice President and Chief Marketing & Communications Officer at OmniVere. Prior this venture, Mr. Gary was Publisher of The National Law Journal & Legal Times.
The California Court of Appeal recently provided rare guidance regarding a third party’s obligations to produce electronically stored information (ESI) in response to a subpoena. In Vasquez v. California School of Culinary Arts, Inc. (Sallie Mae) (August 27, 2014, B250600) Cal.App.4th (2014 WL 4793703), the court defined subpoenaed parties’ obligations to extract existing data from computer systems and upheld an award of attorneys’ fees against the recalcitrant third party. The court concluded that it is unreasonable for a third party to withhold ESI that exists in its computer systems on the basis that outputting the ESI entails creating a “new” spreadsheet.
On July 14, 2014, the Court in United States v. University of Nebraska at Kearny (No. 4:11CV3209) took a significant step in support of Federal Rules 1 and 26. Magistrate Judge Cheryl R. Zwart denied plaintiff’s motion to compel defendants to use plaintiffs’ proposed search terms to cull electronically stored information (ESI) for review and production. The Court’s order effectively discharged defendants’ obligation to produce any ESI. And the Court issued this order notwithstanding both that 1) the parties had agreed to a stipulation summarizing protocol for the production of ESI shortly after the outset of the case, and 2) plaintiff previously produced ESI as part of its production to defendants’ discovery requests. In short, plaintiffs’ unwillingness to fairly compromise as to the breadth of search terms aimed at reasonably limiting the scope of ESI production came back to bite.
It’s officially fall, and beyond the brisk temperatures and ubiquitous pumpkin spice lattes, that means there’s a new crop of television shows all vying for our attention. This season there seems to be a higher rate of shows that use the law or lawyers as a backdrop for the drama, but few have received as much attention (and as manypositivereviews) as the Shonda Rhimes/Viola Davis joint effort, “How To Get Away With Murder.” And it makes sense; ABC has pretty much gone all in on Shonda Rhimes as their personal lord and saviour, and the talented Viola Davis has joined theflockoffilmactresses who’ve decided the best roles are now on the small screen.
But until now I’ve resisted the the urge to watch. I mean, the show is loosely (very, very loosely) based on attending Penn Law and now that it’s over, who really wants to revisit law school? However, when bad weather and a lingering cold conspire to keep me at home all weekend, the siren call of the On Demand listing just proved too much for me to resist…
The bad news: we took away the “easy” button in eDiscovery. The good news: see “the bad news”
Having reviewed a bit of the story of eDiscovery, it may be time to reveal another insider secret: eDiscovery used to be easy. Why? Because we were all good at it? Nope—not at all; it was easy for the exact opposite reason. No one had the slightest idea what they were doing, and so the bar for being an eDiscovery expert was pretty darned low. There were no applicable rules for using electronic information in evidence or requesting ESI in discovery. There were very few cases, reported or otherwise. Most importantly, almost no one had an inkling that stuff on peoples’ computers could be actually useful for lawsuits. Why even worry about it?
A recent administrative order was issued for Google to “to take the necessary technical and organisational measures to guarantee that their users can decide on their own if and to what extend their data is used for profiling.” Last week the Hamburg Commissioner of Data Protection and Freedom of Information (HmbBfDI) ordered that Google is “compelled to collect and combine user data only in accordance with the existing legal framework.”
On September 17, the U.S. Tax Court, in Dynamo Holdings LP v. Commissioner, 143 T.C. No. 9 (Sept. 17, 2014), held that a taxpayer could use predictive coding, over the objection of the Internal Revenue Service (IRS), to identify relevant electronically stored information (ESI) for production. This is the first Tax Court case to address the use of predictive coding in response to a discovery request.