Discovery Advocate

Discovery Advocate

News, Developments and Practical Advice on eDiscovery in the trenches of Litigation

Bring Your Own Device (Everywhere): Legal and Practical Considerations for International BYOD Programs

Posted in Employment, Information Governance, Privacy

The cross-use of mobile devices for personal and professional purposes, commonly referred to as “Bring Your Own Device” or “BYOD”, is a relatively recent phenomenon that has created a host of legal and practical challenges for organizations of all sizes. Implementing a BYOD program is especially complex for companies that have employees who regularly travel internationally, taking their devices (and corporate data) along with them when they cross borders.

In a recent article published by the Richmond Journal of Law & Technology, Wherever You Go, There You Are (With Your Mobile Device): Privacy Risks and Legal Complexities Associated with International “Bring Your Own Device” Programs, we provide in-depth analysis of a number of key BYOD considerations, including:

  • Current BYOD adoption rates and trends around the world;
  • The tension between organizational control of mobile devices and employee privacy;
  • Existing laws, regulatory guidance, and jurisprudence applicable to BYOD programs;
  • Concerns associated with BYOD in the eDiscovery context; and
  • Approaches to BYOD in France, Germany, Spain, and the United Kingdom.

The article also provides a detailed list of questions and issues for organizations to consider when developing or improving a BYOD program.  For example, would the organization be better served by a “corporate-owned, personally enabled (“COPE”)” or a “corporate-owned, business-only (“COBO”) strategy?  How will the organization address employee separation and device disposal procedures?  And if the organization has operations in the European Union, how may the forthcoming revisions to the EU Data Protection Regulation impact the company’s BYOD program?  Thoughtful consideration of these and the many other issues discussed in the article should help organizations avoid implementation and compliance problems down the road.

Download a PDF of the article.

Editor’s Note: This blog post is a joint submission with BakerHostetler’s Data Privacy Monitor blog.

Karin Scholz Jenson Discusses E-Discovery in Q&A for Recommind Blog Article

Posted in E-Discovery Advocacy and Management

Partner Karin Scholz Jenson, national leader of BakerHostetler’s E-Discovery Advocacy and Management team, participated in a question-and-answer session with Senior Discovery Counsel for Recommind, Inc., Philip Favro. Jenson’s responses appeared in a March 17, 2015, blog post on and addressed topics including predictive coding, FRCP amendments, the effects of mobile devices on ESI preservation and production, and lessons from her experience on a New York City jury in 2014.

Read the article.

Judge Peck’s Latest Decision on Technology Assisted Review (TAR): Our Past Blog Posts Revisited

Posted in Predictive Coding, TAR

Many who consider Magistrate Judge Peck’s recent opinion and order in Rio Tinto PLC v. Vale S.A., which he titled “Predictive Coding a.k.a. Computer Assisted Review a.k.a. Technology Assisted Review (TAR) – Da Silva Moore Revisited,” will focus on his declaration “that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” We’ll revisit that statement in a moment, but first note that it is also black letter law that important discovery decisions get revisited. See, e.g., The Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, subtitled “Zubulake Revisited: Six Years Later.”

That said, Judge Peck’s opinion in Rio Tinto is important and is required reading, and his analysis justified revisiting Da Silva Moore, which we have previously discussed.

Transparency – Holding TAR to a Higher Standard Continue Reading

From Sedona to Georgetown to New York—What’s Fashionable in eDiscovery This Year?

Posted in E-Discovery Advocacy and Management, E-Discovery Rules, LegalTech, TAR, The Sedona Conference

It’s that time of year, when bench, bar, vendors, and clients think big eDiscovery thoughts. They go to The Sedona Conference (which is not in Sedona), Georgetown Law’s Advanced eDiscovery Institute (which is not at Georgetown Law—but close!), and in a few short months, LegalTech New York (which, bucking the trend, is in New York).

The Sedona Conference All Voices Meeting

The 2014-15 eDiscovery conference season began in New Orleans with The Sedona Conference’s first “All Voices” meeting (“All Voices”), which brought all the current Sedona Working Groups together under one roof. In addition to Sedona-specific topics, such as proposed updates and revisions to the Sedona Principles and next steps for each Working Group, The Sedona Conference provided panels on a variety of eDiscovery-specific and ‑related topics.

Oriented across plenary and Working Group-specific sessions, All Voices provided insight into the proposed Federal Rule Amendments and their implications for eDiscovery practices, along with a panel discussion on professional responsibility. There were discussions of Privacy and Data Security Issues in eDiscovery for Law Firms and Third-Party Service Providers and related considerations for Bring Your Own Device, or “BYOD,” preservation and discovery; opinions on cross-border corporate investigations; and the application of proportionality in preservation and discovery.

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Predictive coding after keyword screening!? Don’t miss the point of Bridgestone Americas

Posted in Predictive Coding

Magistrate Judge Joe B. Brown’s recent order permitting predictive coding in Bridgestone Americas v. International Business Machines Corporation has received a lot of attention because it allowed the use of predictive coding on a population of documents that had already been screened using keywords pursuant to a case management order that did not provide for the use of predictive coding.

The question whether predictive coding should be deployed on a document population that has already been winnowed using keywords is a hot topic. Opponents say keywords can be a blunt instrument and are often developed and applied by those who don’t have a grasp of the range of claims and defenses at issue or the language used by the litigants and their key players. For example, is this a company that refers to the “business plan” as a “playbook”?

But where parties have already agreed to keywords and the use of a keyword screen, and the resulting document population is still sizable (in this case about two million documents), others say machine learning is a reasonable tool to separate the likely relevant from the likely irrelevant documents. In other words, advocates of this approach argue that the harm done – if any – through the use of a keyword screen will not be remedied by manual review of the resulting document population and a good predictive coding work flow should get at what matters more quickly. Continue Reading

Gil Keteltas Discusses E-Discovery in Q&A for Recommind Blog Article

Posted in E-Discovery Rules, E-Discovery Vendor, Predictive Coding

Partner Gil Keteltas, co-editor of BakerHostetler’s Discovery Advocate blog, participated in a question-and-answer session with Senior Discovery Counsel for Recommind, Inc., Philip Favro. Keteltas’ responses appeared in a July 22, 2014, blog post on and addressed topics including FCRP Rule 26, proposed amendments to FCRP, predictive coding, and e-discovery challenges facing companies in 2014.

Read the article.

Are You Facing the Prospect of a Merger Investigation?

Posted in TAR

Editor’s Note: This blog post is joint submission with BakerHostetler’s Antitrust Advocate blog.

If your organization is facing the prospect of a merger investigation and your lawyers haven’t raised the prospect of technology-assisted document review (“TAR”), then maybe you should be talking with someone else.

What is TAR?

TAR, a relatively new entrant into the world of litigation and investigations, is an iterative process in which human subject matter experts (“SMEs”) interact with software and code small sets of documents.  The computer takes into account the decisions of the subject matter experts and generates new sets of documents from which it thinks it will learn from the human decision makers.  This process typically ends after a few thousand documents have been reviewed and the predictive coding tool concludes it can learn nothing more from the human reviewers.  The predictive coding tool then extrapolates those judgments to the entire set of collected documents, and codes the documents as likely relevant or likely irrelevant.

This is not a “black box” or “set-it-and-forget-it” solution.  Instead, the producing and requesting parties must first agree on protocols covering how the system will be trained, when training will end, and how the results will be audited.  The parties will likely also discuss how transparent the training process will be to the requesting party.  Will the requesting party participate in training?  Will the responding party share its relevance decisions during the training process?  How will privileged documents be handled?  This may sound a bit more complicated than the traditional linear review, but TAR can provide efficiencies and consistency in return for that complication.

What are the benefits of TAR for merging parties facing the prospect of an investigation? 

In a recent publication, the Department of Justice Antitrust Division’s Senior Litigation Counsel for Electronic Discovery, Tracy Greer, noted that the “use of TAR offers the promise of reducing the costs incurred by merging responding to Second Requests and the size the document productions received by the Division, without undermining the ability of the Division to conduct an appropriately thorough investigation.”

Greer offered several additional observations based on the Division’s negotiations of “TAR protocols in approximately a dozen instances.”  Based on that experience, Greer found that “TAR produced smaller, more responsive document productions,” which “contained much more relevant information and less that obviously is not responsive.”  Greer also felt that the Division staff benefited substantially and, based on reports from the producing parties, that the parties experienced “substantial time and cost savings” as well.

Greer went on to state that TAR provided additional opportunities to narrow party productions, including instances where the Division “encouraged parties using a TAR protocol to identify categories of documents that, while technically responsive to the Second Request, [were] not essential to resolving the competitive concerns at issue in the investigation.”  Overall, Greer saw the use of TAR as “an opportunity to reduce further the size of the production,” which, in turn, saves the producing party money, and the producing party and the Division time.

But Greer also included an important caveat when it came to the validation of a TAR process.  That is, the Division also consistently asked producing parties to “provide a statistically significant sample of nonresponsive documents to ensure that facially responsive documents were not excluded from the collection.”  Why?  To support the use of TAR, the Division was checking both the produced documents as well as samples of the data left behind, but the Division did except “documents coded as privileged” from that nonresponsive review.

So, why haven’t your lawyers raised the prospect of TAR with you?  That is an excellent question.

If you have any questions regarding this topic, or would like to learn more about how our E-Discovery Advocacy and Management team can help you, please contact Gil Keteltas, national Co-leader of our E-Discovery Advocacy and Management team,, or 202.861.1530, Karin Jenson, national Co-leader of our E-Discovery Advocacy and Management team,, or 212.589.4266.  If you would like to learn more about our Antitrust and Competition group, please contact Jonathan L. Lewis, or 202.861.1557.

Dear Mr. Snowden: Is it reasonable to expect my attorney-client communications are confidential?

Posted in E-Discovery Rules, Privacy

Last month, Edward Snowden provided the press a document describing “how Australian intelligence conducted surveillance of trade talks between Indonesia and the United States and, in the process, monitored communications between Indonesian officials and an American law firm retained by Indonesia for help with the trade dispute.”

Web-based email service providers may use automated processes to review email you send and receive.  This may be done to look for spelling errors and spam.  But it also may be done to target advertising based on the content of the email.

The terms of service of some cloud providers give the provider the right to access the content of material you create or store for purposes ranging from technical support to refining the cloud services they provide.

In this new digital world, is it reasonable to expect that a communication between client and lawyer for the purpose of obtaining legal advice is confidential (and, therefore, privileged)?  The attorney-client privilege faces new tests with the advent of “the cloud” and other digital innovations.  This was one of the topics covered in the Association of Certified E-Discovery Specialists’ program, “Inviting Scrutiny:  The Impact of Digital Age Innovations on the Attorney-Client Privilege,” in which I participated with U.S. Magistrate Judge James Francis (SDNY) and Phil Favro of Recommind.

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Isn’t E-Discovery Hard Enough Without the Internet of Things?

Posted in E-Discovery Rules, Privacy

This week, after a seemingly endless year of construction, my family and I moved into our new, energy-efficient home.  As I was in the kitchen unpacking, my daughter cried out, somewhat dramatically, “Mama, come here …. The thermostat is watching me…”  Whereupon she proceeded to demonstrate this by waiting until the thermostat went dark and then walking toward it, causing it to awaken.  Being a seasoned privacy and e-discovery lawyer, I responded with equal drama, “Of course dear … We are living in the age of the Internet of Things.”  She was unimpressed with my knowledge.  But it did get me to thinking.  Isn’t e-discovery hard enough without worrying about the Internet of Things (“IoT”)?

The IoT seems to have popped up everywhere around us.  Bob Gohn at Navigant has a great background piece on the IoT as well as a piece on the types of devices that make up the IoT and the security risks they create.  But in layman’s terms, the IoT refers to all the devices that collect data through the use of sensors and connect to the internet that are not traditionally thought of as computing devices.  It is exemplified not just by my nifty thermostat, but also by the FitBit, Google Glass, and even that smart parking meter that tells the meter reader when to come give you a ticket.   The IoT is so pervasive in fact that the term is used interchangeably with the term the “Internet of Everything” and is expected to eclipse the market for traditional computing devices.

Certainly privacy and data security issues related to the IoT are legion.  Given the ubiquity of the IoT, there is little doubt that it is only a matter of time until issues over devices that make up the IoT arise in regulatory enforcement proceedings and litigation.  In fact, late last year, the FTC announced that it had its eye on the consumer risks presented by the IoT by filing a seven-page complaint against TRENDnet, a company that sells internet-connected cameras.  The FTC complaint, which was settled just a few weeks ago by consent order, alleged that TRENDnet’s practices failed to provide reasonable security “to prevent unauthorized access to sensitive information, namely the live feeds from the IP cameras.”   And just in case this enforcement activity wasn’t enough of a signal of its interest in the IoT, the FTC presented a workshop on the IoT, Internet of Things – Privacy and Security in a Connected World, late last year as well.

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Human or Technology Assisted: Imperfect Review Can Still be Defensible (SDNY)

Posted in E-Discovery Rules

It’s a common refrain that, while courts have allowed the use of technology assisted review, no court has yet blessed the outcome of an imperfect technology assisted review process over the objection of another party.  But dicta in Judge Denise Cote’s recent decision in FHFA v. HSBC North America Holdings Inc. (SDNY) (“HSBC“) gets darn close.

HSBC is one of a number of actions brought by the Federal Housing Finance Agency against financial institutions involved in the packaging, marketing and sale of residential mortgage-backed securities purchased by Fannie Mae and Freddie Mac. Judge Cote’s recent decision denied a request to reconsider her January 8th order barring the parties from using documents produced in separate litigation ongoing in California—the Countrywide litigation—unless those documents had also been produced in the New York action.

Among other things, Defendants sought to use a document produced in Countrywide to show that the productions in the New York litigation were incomplete.  The Court rejected this argument in large part because it concluded diligence and good faith is required in responding to discovery requests, but perfection is not. Continue Reading