cle social media_byod_bigdata_ethics_sxsw

March 2014South X Southwest

Social Media, BYOD, and Big Data- Trends and Ethical Considerations

©2013 - Confidential and Proprietary to Cobra Legal Solutions LLC

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• 10 Billion Emails: What Did We Miss?

• BYOD: What You Don’t Know Can Hurt You

• @SocialMedia: Prsv & Rvw 4 #Dfense & #Winning

• The Game Changer: TAR/CAR

• Questions

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The New Reality

= 3.8 GB= 296,000 pages

= 118 boxes

The New Reality• Corporate data is doubling

in size annually

• 80% of data unstructured

• 168,000,000 emails transmitted every minute

• Average executive receives 300 emails each day

• 5 custodians = 2 ½ million pages – the height of the TransAmerica building

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BYOD: Keyword Search This?

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How much data could be on a phone?• Smart phones start at 8 GB and go up to 64 GB• Add a microSD card and you could carry 128

GB of storage in your pocket

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8 GB 64 GB 128 GB0

200400600800

1000120014001600

BYOD By The Numbers

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Intel infograph

BYOD and Data Security• Employers are concerned about data– A study by network access solutions provider

Aruba Networks found that nearly 20 percent of U.S. workers have not told their employers that they use a personal mobile device for work.

– Paul Luehr, managing director at Stroz Friedberg, has seen a rise in BYOD data breaches in his business, especially in employment matters and trade secrets.

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BYOD and Data Security• Employers are concerned about data– According to a recent survey, data loss is a

bigger priority than malware (75 percent versus 47 percent).

– A lost or stolen mobile device consistently ranks as the chief mobile security issue in most studies.

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BYOD and Data Security• Employees are concerned about privacy– According to ITBusinessEdge, 76% of respondents

would not give their employer access to view what applications are installed on their personal device.

– 75% of respondents would not allow their employer to install an app which gives the company the ability to locate them during work and non-work hours.

– 82 percent are concerned to extremely concerned about their employers tracking websites they browse on personal devices during non-work time

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Law Firms, Ethics, and BYOD• Law firms have extra obligation: • At employment law firm Dowling Aaron, they

understood the dangers of having some 50 attorneys carrying phones with access to client documents but no passcode protection or wipe capabilities.

• "If we end up on the front of the Fresno Bee because an attorney left his phone at the bar... the damage to your reputation could literally be millions of dollars,“ explained CIO Darin Adcock.

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Social Media, Cloud: Trends & Impact

• Discovery will only get broader as courts request social media

Regas Christou, R.M.C. Holdings, LLC, d/b/a The Church…d/b/a Funky Buddha Lounge, et al v. Beatport LLC, Bradley Roulier, et al..

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Impact: More data will need to be ingested and processed, but less data can be culled on key terms, increasing data growth.

Social Media, Cloud: Trends & Impact

• Discovery will only get broader as courts order broad production of social media

E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH, 2012 WL 5430974 (D. Colo. Nov. 7, 2012)

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Impact: Human reviewers will be needed to review IMs, texts, and other social media which uses

abbreviations and shortcuts.

Social Media, Cloud: Trends & Impact

• Discovery will only get broader as courts request social media

Theresa Giacchetto v. Patchogue-Medford Union Free School District, No. CV 11–6323 (2013 WL 2897054 E.D.N.Y., May 6, 2013).

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Impact: Counsel will need to spend more time reviewing clients’ social media to determine production or face sanctions.

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Fulfilling Your Ethical Obligations

• Communication with Your Client• Supervise the work– Establish thorough review protocol– Establish communication channel for questions– Spot check review in initial stages– Review privilege documents Per article in Boston

Bar Journal, the outsourcing lawyer retains the Rule 1.1

obligations.

Technology Solutions

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Vendors can coordinate and consolidate the discovery process so that the various phases of eDiscovery are managed consistently and support the legal strategy in each case, but the lawyer is still responsible.

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Processing Solutions

Ingestion All documents collected are loaded into

processing tool. Some documents might be converted.

Preprocessing/Culling DeNIST, Dedup, Metadata Filters

Final processing Keyterm filtering if any; prepare

docs for review tool

Thorough processing can reduce

data size from 30 – 90%

What is TAR/CAR?

• TAR = Technology Assisted Review

• CAR = Computer Assisted Review

• Predictive Coding = computer actually tags documents based on algorithms or symantic indexing

Get the right CAR!

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CAR and Predictive Coding

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Protecting Your Client with CAR

• Understand seed set generation

• Comprehensive ESI & Protective Order

• Clawback

• Analysis

• Due diligence on technology methodology

• Eyes on production set!

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Courts embracing analytics and predictive coding

EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL (Del. Ch. Oct. 15, 2012).

The Court instructs both parties to use predictive coding. MAY 2013 UPDATE: Judge issues new order backing down!

Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012). Note also that non-responsive docs will be submitted to opposing.

Global Aerospace, Inc. v. Landow Aviation, L.P., No. CL 61040 (Vir. Cir. Ct. Apr. 23, 2012)

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Alternatives: Analytics Without Coding

Managing Analytics

• Mixed messages on costs: In re Aspartame Antitrust Litig., 817 F. Supp. 2d (E.D. Pa. 2011)

The court awarded costs for standard processing and hosting. The court declined to award costs related to a “sophisticated e-discovery program” as “squarely within the realm of costs that are not necessary”.

Gabriel Techs., Corp. v. Qualcomm, Inc., No. 08CV1992 AJB (MDD), 2013 WL 410103 (S.D. Cal. Feb. 1, 2013)Court awarded over $12 million in attorneys' fees for contract attorney document review and use of Computer-Assisted Review, reasoning that “CAR” was “more efficient and less-time consuming”.

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Managing Analytics

• Mixed Messages on Costs (continued) The Country Vintner of North Carolina, LLC v. E. & J. Gallo

Winery, Inc. No. 12-2074, April 29, 2013, US Court of Appeals for Fourth Circuit

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Published opinion affirmed strict definition of “making copies”, and only awarded Gallo reimbursement of $218.59 out of the $111,047.75 that they spent on processing ESI.

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Managing Analytics

• Analytics will significantly reduce the number of documents to be reviewed, the highest % of discovery costs†

• Parties will be expected to turn over all non-priv docs from seed set, including non-responsive docs‡

• Helpful to have a vendor that provides flat fee for analytics

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In Conclusion…

• What are your “take aways” for:

BYOD?

Social Media and Cloud Data?

Technology and Computer Assisted Review?

• Questions?

Housekeeping

• Please sign the attendance sheet and include your bar number

• Please complete the Evaluation Form at the end of the presentation and return

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