Adam Losey of IT-Lex.org – eDiscovery Trends, Part 1
March 25, 2013
During our recently concluded thought leader interview series, I had intended to line up at least one more interview – with Adam Losey, president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP. Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia's Information and Digital Resource Management Master's Program. Under the idea of “better late than never”, I was finally able to speak to Adam and get his thoughts on various eDiscovery topics. Enjoy! :-)
What were your general observations about LTNY this year and how it fits into emerging trends?
Well, I’d never been to a LegalTech before, so I saw it with “virgin eyes”, I guess you could say. It was very busy and a bit overwhelming, because there is almost no way you can do everything you want to do there. My overall impression is that it was very well done. Everybody at ALM in setting it up, all of the booths set up by the vendors – it was just very, very well done and, frankly, reinforces the idea of how much money is in this industry. That there would be an event of that size and so much of the effort and money put into it was a very palpable representation of the prevalence of the eDiscovery and legal technology industry that I hadn’t seen before. That’s my general overview.
Specifically, I was a little surprised that a lot more of the vendors don’t turn over the controls to attendees more. I wrote an article in Law Technology News (10 Tips for LegalTech Vendors, which was discussed in this blog here) and, in it, I discuss how I think that most vendors could use the time more productively by getting you to use the tool that they have instead of talking about it generally. My real goal for the show was to play with a lot of these tools and my expectation was that everyone would have tools available to “click around” in. But, I was wrong. While some vendors did, most did not. I would like to see more vendors in the future with terminals with something like the Enron data set that is widely used and have the tool set up where you can just “have at it” and play with it.
Of course, I’m a computer dude, I’ve built computers for fun and I did some basic programming, so you can put me in front of something and I can figure it out fairly quickly. I can understand that it can be dangerous with a lot of folks to “plop” them in front of an interface and expect them to figure it out with no training. Then again, that should be the goal of anybody’s product, to be so intuitive that even somebody that’s not familiar with it can “plop” in front of it and get going with minimal guidance. Honestly, I don’t understand how you can make a good decision without test driving; otherwise, if you just listen to a general spiel, everyone will give you the same spiel. No one is going to sit you down and say “my product is terrible, don’t buy my product”. You can hear about a great software solution or technology, the PowerPoint looks great, the sales people are wonderful and the price is right, but nobody really vets it thoroughly and you wind up being very disappointed. The day-to-day end users need to be part of the process in figuring out what they are going to use.
If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?
From reading the news and talking with colleagues, I have a “macro” thought and some “micro” thoughts, which are mostly anecdotal from my personal experience. My “macro” thought is a continuation of the same, more acceptance rather than introduction of the use of predictive coding (or technology assisted review, computer assisted review, whatever you want to call it).
In addition, I think that there is going to be a lot more emphasis on information security. Anecdotally, you see a lot of data breaches and people are starting to take it pretty seriously. I would include information security and privacy in the realm of eDiscovery even though many wouldn’t. But, you run the risk of stepping on a really big landmine if you don’t have somebody looking out for you on that end, doing everything from making sure you comply with the CAN-SPAM act to making sure you’re meeting the data security requirements in the Gramm-Leach-Bliley Act. Folks are starting to realize that there are significant financial consequences for not doing it right, such as getting sued. Here’s a good example. You’re recording this interview and I gave you consent to do so, but if you were recording it without consent in California, I would have a cause of action against you (according to the California Invasion of Privacy Act) where I could recover a significant amount of money without showing any damages, just because they have a specific statute that allows you to do that. This is significant, in that if you recorded my call, even if it was illegal, it wouldn’t necessarily make sense for me to sue you over that, if you didn’t do something harmful, like put it on the Internet. Privacy legislation is out there where you don’t need to show any damages to receive compensation. That makes people pay more attention to it, and motivates the Plaintiffs' bar to sue.
Anecdotally, I’m seeing the members of the judiciary that aren’t the “eDiscovery rock stars” that we all know becoming a lot more eDiscovery savvy through education and dealing with the issues regularly. Before, judges weren’t necessarily familiar with eDiscovery issues because those issues hadn’t been argued before them. Now, I’m seeing more familiarity with it. I’m also seeing more clients drawing a line on undue burdensomeness, and I am very willing to say to a Judge on behalf of a client “no, we’re not going to spend $1 million on discovery just because opposing counsel asked for everything under the moon, it’s too burdensome and we’re going to quantify why it is overly burdensome, and ask that if they want the moon they have to pay for it”. And, the judiciary has, in accordance with the rules, been receptive to those kinds of undue burden arguments. And, I expect to see more litigation on that, with people “drawing lines in the sand” as to how much they will spend on discovery.
I’m also seeing more state rules changed to accommodate eDiscovery, especially rules that allow “clawback” orders. Illinois just passed a rule allowing “clawback” orders, similar to the Federal “clawback” provision. That’s kind of odd, because there is a conflict of law issue there, where the Federal “clawback” rule allows the Federal court to make an order effective against other Federal courts and state courts (the clawback rule in the Federal Rules of evidence was actually implemented by Congress). The state court equivalent in Illinois allows the state court to make a “clawback” order effective against other courts. But, a state court can’t do that against a Federal court, but the rule “allows” them to do so. As a matter of law, I don’t think a state court can place a protective order that would be binding against a Federal court, it runs afoul of a couple hundred years of case law.
Also, Florida adopted new rules, effective last September. I think it should be a big goal for those drafting state rules to provide clear guidance to trial courts to help them in addressing these issues, because they’re tough issues. Trial courts deal with a high volume of cases with very limited resources and they can’t take a couple of days to “chew on” eDiscovery textbooks, so I think state courts appreciate clear guidance in state rules and I think you’re going to see a lot more states go the way of Florida and pass eDiscovery rules. I just had a hearing in Florida that was governed by the new rules – it would have been a lot more problematic without those rules.
More from Adam tomorrow!Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.