Rule 37(e) of the Federal Rules of Civil Procedure: Changes for ESI Preservation and Spoliation
In 2006, the Federal Rules of Civil Procedure rule-makers developed and put into practice amendments dealing with electronically stored information (ESI) and e-discovery. However, most of those involved believed these amendments did not adequately deal with lost or missing ESI or "the spoliation issue." In 2014 the rule-makers proposed Rule 37(e), which deals with the issue of spoliation equally across all federal courts, resolving the issue of inherent authority, or judges making decisions individually for each case. What are these changes and how will they affect the way businesses deal with e-discovery and data preservation? In this episode of The Digital Detectives, Sharon Nelson and John Simek interview ESI preservation expert James Kurz about how Rule 37(e) works and what the consequences are for the future of ESI preservation. Kurz explains that the rule, which only deals with ESI, proposes a three part test before considering spoliation issues: the ESI should have been preserved in the anticipation or conduct of litigation and is lost, the ESI was lost because the party failed to take reasonable steps to preserve the information, and the missing information cannot be restored or replaced with additional discovery. If this test is passed, the federal court may then impose remedies, or if intention is proved, order more serious sanctions. He explains that Rule 37(e) will make a more homogenous legal process for e-discovery, and will solve some of the controversy surrounding the costs of ESI preservation and e-discovery for businesses. Although the rule faces the Judicial Court, Supreme Court, and then Congress, Kurz believes it will go through and be effective in December 2015. James Kurz is a partner in the Alexandria VA law firm of Redmon, Peyton and Braswell LLP. His practice focuses on business litigation, including computer, software, and communications technologies cases. He also has an emphasis in the challenge of electronic discovery and the issues of information governance and co-wrote the white paper "The Long-Awaited Proposed FRCP Rule 37(e), Its Workings and Its Guidance for ESI Preservation." Special thanks to our sponsor, Digital WarRoom.
24 Sep 2014
Dos and Don'ts of a 30(b)(6) Witness Deposition
Tom O’Connor offers tips for handling common problems surrounding 30(b)(6) witness depositions.
24 Oct 2019
The Top Hot Topics in eDiscovery
The rapid embrace of emergent technologies has flooded the legal marketplace with new tools and processes to help make attorneys’ daily lives better in every way. In this episode of Digital Detectives, hosts Sharon Nelson and John Simek sit down with CloudNine Vice President of Professional Services Doug Austin to discuss the hottest changes and trends surrounding e-discovery. Special thanks to our sponsors, PInow and SiteLock.
18 Nov 2016
Digital Forensics on Mobile Devices
In this episode, hosts Sharon Nelson and John Simek talk to Brett Burney about what lawyers need to know about digital forensics on mobile devices. They discuss Brett’s mobile data collection spectrum, which outlines methods of data collection and preservation for lawyers and their clients. Brett gives tips on what lawyers should consider in these processes to ensure the best results, including the importance of hiring digital forensics technologists when lawyers are uncomfortable with technology.
28 Mar 2019
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Encryption, Cyber Security, and Domestic Surveillance
In the wake of the Panama Papers breach, securing law firm and client data has been a huge concern for many practitioners in the legal space. Similarly, other information leaks like the Edward Snowden revelations have made the general public more aware of government surveillance than ever before. In this episode of Digital Detectives, hosts Sharon Nelson and John Simek sit down with executive director for the Electronic Frontier Foundation Cindy Cohn to discuss domestic surveillance concerns, encryption technology, and how lawyers and law firms can protect themselves and their clients from cyber attacks. Cindy Cohn is the executive director of the Electronic Frontier Foundation. From 2000-2015 she served as EFF’s Legal Director as well as its General Counsel. Ms. Cohn first became involved with EFF in 1993, when EFF asked her to serve as the outside lead attorney in Bernstein v. Dept. of Justice, the successful First Amendment challenge to the U.S. export restrictions on cryptography. Special thanks to our sponsors, PInow and SiteLock.
15 Sep 2016
Issues and Trends in E-Discovery and Information Governance
As lawyers, we hear a lot about the technological advances in e-discovery and information governance. How do you describe the current state of e-discovery from an opportunity and growth perspective, and how does this market opportunity impact the pulse rate of mergers, acquisitions, and investments? For lawyers purchasing e-discovery packages, there are several types of vendors and pricing models, and they need to be asking the right questions. What does the data governance solution need to do, how much does it cost, what are the time constraints, and how complex is the system? In this episode of Digital Detectives, Sharon Nelson and John Simek interview technology marketer Rob Robinson about the current and future trends in data governance, how to choose an e-discovery provider, and events that will influence e-discovery and information governance in 2015. Robinson explains that the combination of software and services that make up the worldwide market for e-discovery in 2014 is just over 6.2 billion dollars and is growing at a consistent rate. He breaks the market down into three categories: developers who create and sell proprietary technologies or services, integrators who package and resell available services with custom development, and aggregators who combine and resell the technologies and services developed and purchased from others. Going into the future, Robinson discusses his excitement over advances in predictive coding, visual classification, and enhancing e-discovery processing. Also, due to corporate pressure for time and cost compression, these e-discovery solutions should continue to become cheaper and more time efficient. At the end of the podcast, Robinson discusses his use of social media to research trends in the information governance market. Based in Austin, Texas, Rob Robinson is a proven technology marketer who has held senior leadership positions with multiple top-tier legal technology providers. Currently he is a managing partner with technology marketing consultancy ComplexDiscovery Solutions. With a strong interest in eDiscovery, information governance, and social media, Rob writes and posts regularly on technology and marketing topics on his highly referenced ComplexDiscovery blog.
16 Dec 2014
Cybersecurity for Macs
If you have a Mac, you might think you’re safe from viruses and hacking. In reality, Mac users still fall victim to malware, adware, and other schemes that can easily slip through the cracks if a user isn’t careful. In this episode of Digital Detectives, hosts Sharon Nelson and John Simek talk to Tom Lambotte, CEO of GlobalMac IT, about how cybercrime has evolved and what Mac using lawyers can do to protect their information, including using a password manager and investing in mobile device management. Tom Lambotte integrated his deep passion for Macs with his successful entrepreneurial skills to create GlobalMac IT, a company that aims to support Mac-based law firms. Special thanks to our sponsors, PInow and SiteLock.
19 May 2017
Cyber Security for Small Firms and Solo Practices
In this episode of Digital Detectives, hosts Sharon Nelson and John Simek speak with Oklahoma Bar Association’s Management Assistance Program Director Jim Calloway about ways small firm and solo attorneys can improve their cyber security. Jim talks about the increased awareness of cyber security in the solo and small law firm community as a result of the recent news coverage of data breaches occurring in a variety of companies. This level of visibility and growing pool of attorneys who have personal experience with someone who has had a data breach or digital disaster has cultivated an understanding that a compromised database or dead computer can put the entire law firm out of business. He states that seeing these large companies being compromised can often cause small firms with much smaller budgets to question if there is anything they can do to protect themselves. Jim points out that attorneys running their own firms or small businesses have a duty to supervise their employees and provides his 5 top cyber security tips to help these very firms and solo lawyers protect themselves, their clients, and address the importance of physically securing company laptops and other mobile devices. He closes the interview with an analysis of the risks and rewards of utilizing cloud-based practice management tools designed specifically for legal professionals and his advice for law firms who feel that they can’t afford to adequately secure themselves. Special thanks to our sponsors, PInow and SiteLock.
18 Aug 2016
Ethical Misadventures in E-Discovery
Sharon Nelson and John Simek discuss some of the most common reasons lawyers run into e-discovery ethics issues, including social media, Yelp reviews, document manipulation, and “hiding the ball” by giving opposing counsel too much data. And negligence is no excuse; if you’re not qualified for the discovery needs of the case, Sharon and John explain, you must get the education, hire a competent lawyer, or decline representation.
29 Mar 2018
Predictive Coding for Rookies: E-Discovery in the Courtroom
Discovery, as all lawyers know, is the process of collecting and exchanging information about the court case to prepare for the trial. Traditionally, this was done by many lawyers over countless billable hours in which every page of potential evidence was examined for important information. Because of this, the more information existed in reference to a case, the more expensive the case was. As technology developed, law firms began using computers to do keyword searches and conceptual searches. Unfortunately, there were problems including picking the right keywords or concepts, misspelled words, how to structure the items, and that these searches only yielded 20% of important data. Recently, technology has advanced to predictive coding, or teaching a computer program to think like a lawyer would. But how cost effective and practical is predictive coding, and how well does it actually work? In this episode of The Digital Detectives, Sharon Nelson and John Simek discuss the evolution of technology and case discovery, how predictive coding works and is priced, and examples of cases that have involved predictive coding. Simek first explains the importance of culling, or filtering out unimportant data sets through DeNISTing, deduping, or filtering by dates. He then explains predictive coding in its simplicity: to feed a computer program information based on discovery attorneys have already done until the computer can accurately predict which information is important. Simek and Nelson then go on to examine the prices vendors charge for the predictive coding process and in which cases it might be profitable for the law firm or client. There is a steep, expensive learning curve involved; many mid-sized law firms probably will not profit and even very large cases only save an average of 15% using predictive coding. However, Nelson explains, predictive coding is the future of discovery, so it is important for lawyers to pay attention to when the benefits outweigh the costs. Nelson concludes the podcast by giving examples of when predictive coding has already appeared in court cases. The landmark case was Da Silva Moore v. Publicis Groupe, in which Magistrate Judge Andrew Peck allowed predictive coding to be used as long as the defense and prosecution agree to its use, there are a large volume of documents, it is the superior technology, it is more cost effective, and it is transparent and defensible. Inevitably, the conclusion is that it is not for the judge to micromanage the discovery process. Special thanks to our sponsor, Digital WarRoom.
27 Oct 2014
How Lawyers Should Use Spreadsheets
Spreadsheets have the potential to be an important part of running a legal business, but not all lawyers have the time to fully understand how to effectively use them. In this episode of Digital Detectives, hosts Sharon Nelson and John Simek talk to Ben Kusmin about the proper handling and format of spreadsheets, including a thorough review of all content before sending it. He also discusses the Wells Fargo inadvertent disclosure issue and how it could have been avoided. Ben Kusmin focuses on complex business litigation in state and federal courts. He also created a CLE training program called Excel Esquire to give attorneys the skill they need to successfully navigate in Excel. Special thanks to our sponsors, PInow and SiteLock.
19 Sep 2017
Practical Approaches to Preserving New (and Not-So-New) Media
Social Media is a big deal in the legal profession. Not only is it being used to promote law practices but it's increasingly being used as digital evidence in courtrooms. In this episode of Digital Detectives, hosts Sharon Nelson and John Simek talk to Craig Ball about the intricacies of preserving digital evidence. Their discussion includes whether or not to hire a professional to do the preservation and tools that you can use to gather and preserve digital evidence. Craig Ball is a longtime adjunct professor teaching Digital Evidence at the University of Texas School of Law. He writes and speaks around the world on e-discovery and computer forensics. Special thanks to our sponsors, PInow and SiteLock.
18 Apr 2017
eDiscovery: Major Developments in 2018 and a Look Ahead
The processes of eDiscovery and its regulation are constantly changing. The challenges that come with this continuous evolution require lawyers to be educated on best practices. In this episode, hosts Sharon Nelson and John Simek talk to Doug Austin about the most prominent trends in eDiscovery. They talk about the new developments in data privacy laws from 2018 and discuss the most significant criminal and civil eDiscovery cases.
30 Jan 2019
Ethical Issues with Confidential Data
Because lawyers are constantly handling confidential or sensitive information, cybersecurity and the careful handling of this information are an important part of running a successful firm. In this episode of Digital Detectives, hosts Sharon Nelson and John Simek talk to Jim McCauley about some of the ethical issues lawyers face and how the Virginia Bar is helping to educate lawyers on how to handle these issues. Some of these issues include information security and common scams used to hack into confidential data. James McCauley is the Ethics Counsel for the Virginia State Bar. He teaches professional responsibility at the T.C. Williams School of Law and served on the ABA’s Standing Committee on Legal Ethics and Professionalism from 2008-2011. Special thanks to our sponsors, PInow and SiteLock.
19 Jun 2017
Privacy vs. Protection: Warrantless Phone Searches at the Border
Since Trump’s executive decisions regarding immigration, U.S. border security has taken steps to reflect the changes in legislation. One of the actions taken was the increased search of travelers’ phones and other electronic devices by border agents. In this episode of Digital Detectives, hosts Sharon Nelson and John Simek talk to Sophia Cope about the EFF and ACLU challenge against the government’s warrantless searches of cell phones and other devices at the border. They discuss why this is a unacceptable invasion of privacy, the current actions allowed by the Fourth Amendment, and whether you have the right to refuse to unlock your device. Sophia Cope is a staff attorney at the Electronic Frontier Foundation. The non-profit advocacy organization works at the intersection of civil liberties and technology. Special thanks to our sponsors, PInow and SiteLock.
29 Dec 2017
Is the California Consumer Privacy Act Part of a Trend?
The General Data Protection Regulation (GDPR) has garnered a lot of attention in a time where data protection has become a hot topic. Hosts Sharon Nelson and John Simek talk to Scott Pink about the California Consumer Privacy Act, a law that aims to give consumers more control over their privacy and data usage. They discuss the rights formally recognized by this act, what kind of businesses it applies to, and whether other states are likely to adopt similar legislation.
23 Jul 2018
Data Breaches, eDiscovery, and the Importance of Digital Forensics
Every law firm can run into incidents of employee misconduct, data breaches, and intellectual property theft. In the age of modern technology, data breaches, insider trading, and other security problems require extensive technological forensics. Partners and firm owners, as well as lawyers working within the firm, need to understand why a digital investigation is needed, what steps should be taken within an investigation, and who should be involved. Having this knowledge can save the firm thousands of dollars while uncovering the truth. In this episode of Digital Detectives, Sharon Nelson and John Simek interview ediscovery and compliance attorney Patrick Oot about how attorneys should be prepared on technology issues when they start to investigate criminal and civil matters. Everyone leaves technology footprints, Oot explains. Whether dealing with an internal investigation or with client data, the most important asset is unbiased, comprehensive, and well documented research. When hiring a digital investigator, the firm should always find an outside expert who is experienced with data breaches, understands how data moves through the system, and can manage proper narrative to the regulators. Properly conducting a digital investigation can make the difference in the credibility and success of a law firm. Patrick Oot is a partner in the DC office of Shook Harty and Bacon LLC where he leads the practice on e compliance and digital investigations. He is one of the few ediscovery and compliance attorneys in the nation that possesses the tripartite experience of an in-house corporate counsel from a fortune 16 organization, a senior attorney at a federal regulatory agency, and a partner in a large law firm. Patrick has extensive experience advising on discovery and investigative matters involving commercial litigation, compliance, regulatory requests, antitrust matters, and personnel issues. Special thanks to our sponsor, Digital WarRoom.
28 Jul 2014
Cull, Baby, Cull - Modern Trends in Data Collection and Analysis
Despite all the attention that e-discovery has received over the last decade, it is still a relatively new part of the litigation process. For those lawyers who were never exposed to e-discovery in law school or their formative years, the systems and products involving data collection and analysis can be overwhelming and complex. How much do lawyers need to know about information governance, data collection, data analysis, managed document review, and electronically stored information (ESI)? Alternately, for those data collection practitioners who are already intricately involved in the culling and analysis, how is the technology and process changing? In this episode of Digital Detectives, Sharon Nelson and John Simek interview e-discovery solutions expert Aaron Lawlor about what is involved with ESI and data collection, current trends in data analysis, and future advances in technology and process. Lawlor urges every litigator to become experienced with the state and federal rules involving e-discovery in order to better serve their clients. He explains the process of research and documentation of key players in the case, and then collecting, analyzing, and refining any relevant information before presenting to the counsel. In order to facilitate this process, lawyers and data collectors narrow the data set early by a process of visualizing connections and communication mapping. It is important, Lawlor says, for every lawyer to become familiar with e-discovery and data collection, since it is an increasingly important source of information. Aaron Lawlor is the senior director of Global Legal Solutions at UnitedLex Corporation. He has spent the past decade addressing his clients' e-discovery needs, first as an attorney at Am Law 100 firm, then as the cofounder of a boutique consulting and managed document review company. His company was acquired by UnitedLex in 2013 and, in his current role, he partners with in-house and outside council to implement value-driven e-discovery solutions. Special thanks to our sponsor, Digital WarRoom.
18 Aug 2014
Fastcase’s Artificial Intelligence Sandbox
Sharon Nelson and John Simek talk to Ed Walters about AI Sandbox, Fastcase’s new artificial intelligence initiative that aims to encourage firms’ experimentation with AI. They discuss common AI projects law firms are working on and why AI is just now beginning to take root in the legal industry even after many years of budding popularity.
23 Apr 2018
The FBI’s Access to iPhone Data: Apple Fights Back
Having the ability to break into a terrorist’s phone sounds good, but what happens when the FBI’s access to your phone leaves you vulnerable to cyber attacks? Hosts Sharon Nelson and John Simek talk to Nate Cardozo about the FBI’s stance on encryption including their desired ability to access our phones, the First Amendment issues involved, and the implications of the FBI vs Apple San Bernardino confrontation.
30 May 2018