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e-Discovery and Information Governance:
Cloud Computing, Mobile Devices, Social Media and other
Potential e-Discovery  Nig...
Cloud Computing, Mobile Devices, Social Media and other
Potential e-Discovery  Nightmares…
October 27th, 2015
Thank You to...
1. Introduction
• Moderators
• Brad Schaffel, CEDS:
Brad Schaffel is the Litigation Support Manager for the New York offic...
1. Introduction
• Moderators
• Joe Bartolo, J.D.:
Joe is the Director of Strategic Partnerships for JURISolutions Legal, a...
1. Introduction
• Subject Matter Expert Panelists:
• Alan Winchester, Esq.
Mr. Winchester is a member of the firm and lead...
1. Introduction
• Subject Matter Expert Panelists:
• Dera Nevin, Esq.
• Dera J. Nevin is the Director, eDiscovery Services...
1. Introduction
• Subject Matter Expert Panelists:
• Anthony Vescova
• Anthony Vescova, e-Discovery Specialist, provides t...
1. Introduction
• Subject Matter Expert Panelists:
• Scott Gibbs, EnCE, CCE, CHFI, MCP
• Scott  Gibbs  is  Direct  Data  D...
AGENDA
1. Introduction: Cloud Computing – What is it?
A) What is Cloud Computing anyway?
B) Why is Cloud important?
C) Wha...
1. Introduction –
Source: EDRM
10
1. Introduction – Information Governance Reference Model
Source: EDRM
11
1. Introduction – Sources of Data – Electronically Stored Information (ESI)
Source: EDRM
Source: New York County Lawyers A...
1. Introduction – Sources of Data – Electronically Stored Information (ESI)
Source:  “Digital,  Social  &  Mobile  Worldwi...
1. Introduction: Cloud Computing – What is it?
A) What is Cloud Computing anyway?
B) Why is Cloud important?
C) What is Di...
1. Introduction: Cloud Computing – What is it?
A) What is Cloud Computing anyway?
Definition of CLOUD COMPUTING:
• (noun) ...
1. Introduction: Cloud Computing – What is it?
B) Why is Cloud important?
Cloud Computing is essential:
• Inexpensive Clou...
1. Introduction: Cloud Computing – What is it?
B) Why is Cloud important?
Cloud services continue to grow:
• Deloitte  Sur...
1. Introduction: Cloud Computing – What is it?
B) Why is Cloud important?
Cloud creates unique challenges for the legal pr...
1. Introduction: Cloud Computing – What is it?
C) What is Different about Cloud based data from an e-Discovery perspective...
1. Introduction: Cloud Computing – What is it?
C) What is Different about Cloud based data from an e-Discovery perspective...
1. Introduction: Cloud Computing – What is it?
C) What is Different about Cloud based data from an e-Discovery perspective...
1. Introduction: Cloud Computing – What is it?
C) What is Different about Cloud based data from an e-Discovery perspective...
1. Introduction: Cloud Computing – What is it?
D)  How  do  you  collect  data  from  another  entity  that  is  in  contr...
1. Introduction: Cloud Computing – What is it?
D)  How  do  you  collect  data  from  another  entity  that  is  in  contr...
1. Introduction: Cloud Computing – What is it?
D)  How  do  you  collect  data  from  another  entity  that  is  in  contr...
1. Introduction: Cloud Computing – What is it?
E) How do law firms and corporate clients keep track of where potentially r...
1. Introduction: Cloud Computing – What is it?
E) How do law firms and corporate clients keep track of where potentially r...
2. How is the increased Use of Mobile Devices Impacting the Legal Profession?
A) What is unique about the use of tablets a...
2. How is the increased Use of Mobile Devices Impacting the Legal Profession?
A) What is unique about the use of tablets a...
2. How is the increased Use of Mobile Devices Impacting the Legal Profession?
A) What is unique about the use of tablets a...
2. How is the increased Use of Mobile Devices Impacting the Legal Profession?
A) What is unique about the use of tablets a...
2. How is the increased Use of Mobile Devices Impacting the Legal Profession?
B) How are BYOD policies impacting e-Discove...
2. How is the increased Use of Mobile Devices Impacting the Legal Profession?
B) How are BYOD policies impacting e-Discove...
2. How is the increased Use of Mobile Devices Impacting the Legal Profession?
B) How are BYOD policies impacting e-Discove...
2. How is the increased Use of Mobile Devices Impacting the Legal Profession?
C) What are some concerns specific to the us...
2. How is the increased Use of Mobile Devices Impacting the Legal Profession?
D) Can you ethically search information that...
3. How is the Use of Social Media Impacting e-Discovery
A) How is social media impacting litigation?
B) What are some best...
3. How is the Use of Social Media Impacting e-Discovery
A) How is social media impacting litigation?
Special concerns rela...
3. How is the Use of Social Media Impacting e-Discovery
B) What are some best practices for corporations for monitoring so...
3. How is the Use of Social Media Impacting e-Discovery
B) What are some best practices for corporations for monitoring so...
3. How is the Use of Social Media Impacting e-Discovery
B) What are some best practices for corporations for monitoring so...
4. What are some jurisdictional issues that might arise based on Cloud data?
A) Why does jurisdiction matter when it comes...
4. What are some jurisdictional issues that might arise based on Cloud data?
A) Why does jurisdiction matter when it comes...
4. What are some jurisdictional issues that might arise based on Cloud data?
A) Why does jurisdiction matter when it comes...
4. What are some jurisdictional issues that might arise based on Cloud data?
B) Are there data privacy regulations that ne...
4. What are some jurisdictional issues that might arise based on Cloud data?
B) Are there data privacy regulations that ne...
4. What are some jurisdictional issues that might arise based on Cloud data?
B) Are there data privacy regulations that ne...
4. What are some jurisdictional issues that might arise based on Cloud data?
B) Are there data privacy regulations that ne...
5. Conclusion
A) Concluding Remarks
B) Q&A
49
5. Conclusion
A) Concluding Remarks
Suggestions for addressing some of these issues:
• Assemble and coordinate efforts thr...
5. Conclusion
A) Concluding Remarks
Suggestions for addressing some of these issues:
• Create a process which segregates c...
5. Conclusion
A) Concluding Remarks
Suggestions for addressing some of these issues:
• Know who in an organization uses mo...
5. Conclusion
A) Concluding Remarks
Suggestions for addressing some of these issues:
• What statutory compliance issues ar...
5. Conclusion – Reference Materials
Additional Reference Materials
• www.privacyassociation.org – International Associatio...
5. Conclusion
• Additional Resources For This Topic Will Be Provided at the ACEDS Website –
www.aceds.org
• ACEDS Global A...
5. Conclusion
• Additional Resources For This Topic Will Be Provided at the ACEDS Website:
www.aceds.org
• Panelist Contac...
5. Conclusion
• Information about Women in e-Discovery:
http://www.womeninediscovery.org/chapters/new-york-city
www.womeni...
5. Conclusion
Information about The New York City Paralegal Association:
• nycpaparalegals@gmail.com
• www.nyc-pa.org
• Bo...
5. Conclusion – Reference Materials
Additional Reference Materials
• “Guide  Seeks to Bring You Up to Date With Burgeoning...
5. Conclusion
• Thanks You For Attending
• Thanks to Nixon Peabody for Hosting This Event
• Thanks to Our Event Sponsors: ...
5. Conclusion
• QUESTIONS & ANSWERS
61
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Aceds 2015 wie nycpa final oct panel slides

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eDiscovery Nightmares - Panel Discussion - October 27th - New York City - Nixon Peabody - ACEDS - Women in eDiscovery - New York City Paralegal Association

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Aceds 2015 wie nycpa final oct panel slides

  1. 1. e-Discovery and Information Governance: Cloud Computing, Mobile Devices, Social Media and other Potential e-Discovery  Nightmares… October 27th, 2015 Women in e-Discovery – New York Chapter ACEDS – New York Metro Area Chapter New York City Paralegal Association
  2. 2. Cloud Computing, Mobile Devices, Social Media and other Potential e-Discovery  Nightmares… October 27th, 2015 Thank You to Our Event Sponsors:
  3. 3. 1. Introduction • Moderators • Brad Schaffel, CEDS: Brad Schaffel is the Litigation Support Manager for the New York office of Wilmer, Cutler, Pickering,  Hale  and  Dorr,  LLP.    He  is  a  resident  of  Brooklyn,  New  York  and  has  over  22  years’   experience in Litigation Support. Brad is a member of the Charter Class of Certified E- Discovery  Specialists  and  currently  serves  as  a  V.P.  in  the  ACEDS  NY  Metro  Chapter’s  Advisory   Board and co-chairs its educational committee. Tasked with creating a team of experienced professionals, Mr. Schaffel has been successful in building a department of top-tier individuals who are able to act as in-house legal technology consultants as well as excellent project managers and technicians. Brad continuously strives to improve automation and workflow; keeping up with the growing size and complexity of discovery requests is an on-going challenge that requires constant attention. Mr. Schaffel has served on industry panels and has been involved in e-discovery education for quite some time. To further these aims, Mr. Schaffel is an adjunct professor for Bryan University and is a member of numerous professional Associations. 3
  4. 4. 1. Introduction • Moderators • Joe Bartolo, J.D.: Joe is the Director of Strategic Partnerships for JURISolutions Legal, and provides consultative legal technology support services to corporations and law firms. Mr. Bartolo is a V.P. In the ACEDS  New  York  Metro  Chapter  Member’s  Advisory  Board,  and  co-chair  of  its’  educational   committee. Joe is a former litigator in New York, and is formerly the National Technology Advisor for IKON. Joe has instructed numerous Continuing Legal Education courses throughout the U.S. for the past 10 years on eDiscovery and related topics. Mr. Bartolo was formerly the head of the EDRM Metrics Working Group, and is a member of GOAL (Global Outsourcing Association of Lawyers). Joe has also authored serval published articles regarding eDiscovery and the impact of technology on the legal profession, and is an avid blogger regarding information governance issues. In addition, Mr. Bartolo is a Certified Administrator in Various Document Review Hosted Platforms including Clearwell, and iCONNECT. Joe received his B.A. Degree from New York University in 1989, and his J.D. Degree from Rutgers School of Law – Newark in 1992 4
  5. 5. 1. Introduction • Subject Matter Expert Panelists: • Alan Winchester, Esq. Mr. Winchester is a member of the firm and leader of its national e-discovery practice (e-info℠). His (e-info℠) team assists organizations with all aspects of computers and their intersection with the law. In the area of e-discovery, his services include the location and production of documents during litigation or government investigations. Mr. Winchester also practices in the areas of cybersecurity, information governance and compliance for organizations that host private or protected information on their computer systems. He also practices within the Medical and Life Sciences Industry Team and in the Mass Torts and Industry-Wide Litigation Practice Group where he defends device and pharmaceutical companies in both personal injury and consumer fraud based claims. Alan received his B.S. Degree in Computer Sciences and Philosophy from Trinity College in 1986, and his J.D. Degree from Brooklyn Law School in 1989. Alan is a member of the New York State Bar, and is admitted to Federal practice in both the Southern District of New York, and the Eastern District of New York. 5
  6. 6. 1. Introduction • Subject Matter Expert Panelists: • Dera Nevin, Esq. • Dera J. Nevin is the Director, eDiscovery Services at Proskauer Rose LLP. She is an accomplished e-discovery lawyer with significant operational experience developing and managing eDiscovery and practice support programs and teams. She maintains a focus on strategic process and technology initiatives and e-Discovery matter and program cost containment. She has significant experience recommending and implementing technology, building and evaluating e-discovery operations and spearheading strategic initiatives directed at increasing e-discovery program effectiveness. Her experience includes advising on all aspects of e-discovery in civil, criminal, regulatory and M&A transactions and in internal investigations, and in transborder e- Discovery. She has managed review and production totals of over 500 million records. She has pioneered the use of e-discovery applications, including technology-assisted review and multi-lingual search. She has advised numerous corporations on the development and implementation of e-discovery programs and strategies, including litigation hold management and audit. She also has experience in related aspects of information governance, including records retention and disposition initiatives, including those arising from document conversion and system migration projects. • Ms. Nevin is a founding member of the Legal Technology Professionals Institute, and serves on its Board, and is a part member of the EDRM Advisory Board Co-Chair of the EDRM Metrics Group. Ms. Nevin is also on the advisory board and teaches in the Bryan University e-Discovery Project Management (EDPM) post-graduate program. She is a frequent speaker on a variety of topics relating to electronic evidence management, including document review and production, large team coordination, international transmission of data and the law of privilege and privacy in the management and exchange of electronic records. She writes a regular column on e-Discovery in Canadian Lawyer magazine, and has published articles on e-Discovery in the Association of Corporate Counsel Magazine and in the LTN. • Ms. Nevin graduated from the University of Toronto Faculty of Law (J.D.), and holds an M.A. and a B.A. (Hons.)  from  Queen’s  University. 6
  7. 7. 1. Introduction • Subject Matter Expert Panelists: • Anthony Vescova • Anthony Vescova, e-Discovery Specialist, provides technology support and technical advice to  litigation  teams  working  in  Nixon  Peabody’s  New  York  offices  (NYC  &  Long  Island). As an e-Discovery specialist, Mr. Vescova consults with attorneys, staff, and clients then assists in the design and execution of efficient, cost-effective eDiscovery strategies. Mr. Vescova also maintains electronic discovery databases and supports projects throughout the litigation process. • Mr. Vescova has  extensive  experience  supporting  trial  teams  from  war  room  set  up  to  “hot   seat”  support. • Since joining Nixon Peabody LLP, Mr. Vescova has worked with the e-Discovery services group utilizing his skills across all phases of the Electronic Discovery Reference Model (EDRM). • Legal Application Experience: Relativity; CaseLogistix; Concordance; Summation; TrialDirector; TextMap; CaseMap; TimeMap; Trident; LiveNote; IPRO Suite 7
  8. 8. 1. Introduction • Subject Matter Expert Panelists: • Scott Gibbs, EnCE, CCE, CHFI, MCP • Scott  Gibbs  is  Direct  Data  Discovery’s  Senior  ESI/Forensic  Coordinator.  Mr.  Gibbs’  specializes  in  digital   forensics examinations and is an expert in computer forensics, data recovery, and digital security. • Mr. Gibbs has been an IT administrator for more than nine years, an IT Director for a digital forensics and eDiscovery firm for more than six years, and a forensic examiner for also more than six years. Mr. Gibbs has received digital forensics training from Guidance Software, Mile2 Security and EC Council training materials. • Scott has earned the following certifications, The EnCE (Encase Certified Examiner), the CCE (Certified Computer Examiner), the CHFI (Certified Hacking Forensics Investigator), and the MCP (Microsoft Certified Professional). • Mr.  Gibbs’  extensive  technical  background,  combined  with  a  high  level  of  experience  in  computer   forensics and investigative services allows him to provide top level professional consulting services to law firms and corporations in a wide variety of industries. • Mr. Gibbs received his undergraduate degree from Clark Atlanta University, Atlanta, GA. 8
  9. 9. AGENDA 1. Introduction: Cloud Computing – What is it? A) What is Cloud Computing anyway? B) Why is Cloud important? C) What is Different about Cloud based data from an e-Discovery perspective? D)  How  do  you  collect  data  from  another  entity  that  is  in  control  of  “your”  data? E) How do law firms and corporate clients keep track of where potentially relevant data resides? 2. How is the increased Use of Mobile Devices Impacting the Legal Profession? A) What is unique about the use of tablets and mobile devices? B) How are BYOD policies impacting eDiscovery? C) What are some concerns specific to the use of mobile devices? D) Can you ethically search information that might be from personal accounts of your employees? 3. How is the Use of Social Media Impacting e-Discovery A) How is social media impacting litigation? B) What are some best practices for corporations for monitoring social media content? 4. What are some jurisdictional issues that might arise based on Cloud data? A) Why does jurisdiction matter when it comes to Cloud computing, or collecting data from mobile devices? B) Are there data privacy regulations that need to be addressed? 5. Conclusion A) Concluding Remarks B) Questions and Answers 9
  10. 10. 1. Introduction – Source: EDRM 10
  11. 11. 1. Introduction – Information Governance Reference Model Source: EDRM 11
  12. 12. 1. Introduction – Sources of Data – Electronically Stored Information (ESI) Source: EDRM Source: New York County Lawyers Association – May 2015 12
  13. 13. 1. Introduction – Sources of Data – Electronically Stored Information (ESI) Source:  “Digital,  Social  &  Mobile  Worldwide  in  2015”  – Simon Kemp – January 2015 13
  14. 14. 1. Introduction: Cloud Computing – What is it? A) What is Cloud Computing anyway? B) Why is Cloud important? C) What is Different about Cloud based data from an e-Discovery perspective? D)  How  do  you  collect  data  from  another  entity  that  is  in  control  of  “your”  data? E) How do law firms and corporate clients keep track of where potentially relevant data resides? 14
  15. 15. 1. Introduction: Cloud Computing – What is it? A) What is Cloud Computing anyway? Definition of CLOUD COMPUTING: • (noun) - the practice of storing regularly used computer data on multiple servers that can be accessed through the Internet 15
  16. 16. 1. Introduction: Cloud Computing – What is it? B) Why is Cloud important? Cloud Computing is essential: • Inexpensive Cloud Computing, Open Source Software and Database Management have spawned Big Data • Google is more than 1 million petabytes in size and processes more than 24 petabytes of data a day, a volume that is thousands of times the quantity of all printed material in the U.S. Library of Congress • 90 percent of the data in the world today has been created in the past two years Source: New York County Lawyers Association – May 2015 16
  17. 17. 1. Introduction: Cloud Computing – What is it? B) Why is Cloud important? Cloud services continue to grow: • Deloitte  Survey  in  2010  found  only  9%  of  respondents  were  “well   prepared”  to  capture  and  store  data  from  the  cloud • As of November 2011 survey by American Lawyer, 65% of law firms use cloud computing and 47% report increased usage 17
  18. 18. 1. Introduction: Cloud Computing – What is it? B) Why is Cloud important? Cloud creates unique challenges for the legal profession: • Discovery involves the identification, preservation, collection, review and production of relevant information in a party’s  possession,  custody  or   control…this  extends  to  cloud  based  data 18
  19. 19. 1. Introduction: Cloud Computing – What is it? C) What is Different about Cloud based data from an e-Discovery perspective? Challenges of posed by the cloud: • Data Storage • Retrieval • Format • Metadata • Location / Jurisdiction • Both Time and Cost are critical for each step must be evaluated 19
  20. 20. 1. Introduction: Cloud Computing – What is it? C) What is Different about Cloud based data from an e-Discovery perspective? Challenges of posed by the cloud: • Security and privacy continue to be the top concerns in adopting cloud computing • A cloud provider may shut down unexpectedly, the data may be locked-in, leaving the company without the ability to protect, access or move the data • e-Discovery issues must be considered when using the cloud: Ownership and control; cost; destruction of data; and jurisdictional issues must all be addressed 20
  21. 21. 1. Introduction: Cloud Computing – What is it? C) What is Different about Cloud based data from an e-Discovery perspective? Challenges of posed by the cloud: • The loss/alteration of data and associated metadata • The potential violation of international data privacy laws by illegally disclosing data in the jurisdiction in which the cloud is located • The unintentional waiver of the attorney-client privilege by co-mingling data or disclosing attorney client communications to third parties • The failure to properly and timely implement and monitor litigation holds Source: E-Discovery: “Ascending  to the cloud creates negligible e-Discovery  risk” - Inside General Counsel – Steven Hunter – July 2011 21
  22. 22. 1. Introduction: Cloud Computing – What is it? C) What is Different about Cloud based data from an e-Discovery perspective? Need for Service Level Agreement (SLA) Negotiation: • Performance measures in SLA’s • Data encryption, with algorithm / key length • Data retention and destruction • Audit rights • Retrieval • Prohibition  on  data  use  (i.e.  they  can’t  use  or  share) • Liability for theft or loss of data Source: Womble Carlyle – November 2010 22
  23. 23. 1. Introduction: Cloud Computing – What is it? D)  How  do  you  collect  data  from  another  entity  that  is  in  control  of  “your”  data? Special Cloud Considerations: • Is the corporate I.T. infrastructure compatible with the Cloud provider’s? • What happens at the end of a Cloud services agreement? • What additional costs might be required to preserve and/or collect cloud data? • What delays might be associated with obtaining corporate data that resides in the cloud? 23
  24. 24. 1. Introduction: Cloud Computing – What is it? D)  How  do  you  collect  data  from  another  entity  that  is  in  control  of  “your”  data? Special Cloud Considerations: • Should cloud-based storage be addressed in your document retention and destruction policies, as well as in litigation holds? • Will a cloud provider implement your legal hold? • What are the provider’s  data-retention and back-up policies? • What method does a cloud provider use to maintain the data? 24
  25. 25. 1. Introduction: Cloud Computing – What is it? D)  How  do  you  collect  data  from  another  entity  that  is  in  control  of  “your”  data? Stored Communications Act: • Most cloud service providers are covered • Covered providers may not release communications even when served with a subpoena • May  only  do  so  with  “lawful  consent”  of  subscriber • Proper course is to direct subpoena / document request to subscriber Source: Womble Carlyle – November 2010 25
  26. 26. 1. Introduction: Cloud Computing – What is it? E) How do law firms and corporate clients keep track of where potentially relevant data resides? Controlling the cloud: • International privacy rights and jurisdictional concerns might be issues of concern • It is  possible  the  law  of  current  “site”  of  the  data  will  apply  regarding   release/disclosure • May be  difficult  or  impossible  to  determine  where  cloud  data  “resides” • Privacy rules vary considerably, especially for European Union countries 26
  27. 27. 1. Introduction: Cloud Computing – What is it? E) How do law firms and corporate clients keep track of where potentially relevant data resides? Working with cloud providers: • Consult with IT personnel to identify a comprehensive list of the company’s  cloud   providers and potential locations of data • Determine whether the cloud provider uses any subcontractors for storing data • Learn where the cloud provider physically stores data and whether or not there are any specific issues regarding that data storage that are of concern, such as storage format and archiving schedules and capabilities 27
  28. 28. 2. How is the increased Use of Mobile Devices Impacting the Legal Profession? A) What is unique about the use of tablets and mobile devices? B) How are BYOD policies impacting e-Discovery? C) What are some concerns specific to the use of mobile devices? D) Can you ethically search information that might be from personal accounts of your employees? 28
  29. 29. 2. How is the increased Use of Mobile Devices Impacting the Legal Profession? A) What is unique about the use of tablets and mobile devices? An explosion of mobile technology: • Approximately 250 million mobile phone users in the United States • Approximately 4 million apps available for download on the five leading app stores • There will likely be apps beyond iMessage and email that may contain information, there might relevant information contained in apps that you are unfamiliar with Source: The Daily Record – “eDiscovery  Update: 7 Tips to Preserve, Review Mobile Device Data”  – August 2015 29
  30. 30. 2. How is the increased Use of Mobile Devices Impacting the Legal Profession? A) What is unique about the use of tablets and mobile devices? An explosion of mobile technology: • There are nearly 7 billion mobile subscriptions worldwide, estimates The International Telecommunication Union…equivalent  to 95.5 percent of the world population Source:    “Challenges  of  Mobile  Devices,  BYOD  and  eDiscovery”  – Haman Allen and David Herman – September 2015 • eMarketer estimates over 1 Billion Mobile Tablet users worldwide in 2015, an increase  of  over  17%  versus  2014…over  1.4  Billion  users  projected  by  2018 30
  31. 31. 2. How is the increased Use of Mobile Devices Impacting the Legal Profession? A) What is unique about the use of tablets and mobile devices? Special concerns unique to mobile devices: • Collecting ESI from mobile devices is not rocket science, but does require proper training and experience, as well as the proper tools • Potentially relevant user-created data from mobile devices can be found in several different locations including but not limited to: embedded memory; Subscriber Identity Modules (SIM) cards; and removable storage • Due to increased scope of functionality and the vast amount of third-party applications, additional considerations must be taken into account in order to identify what is or is not relevant user-created data 31
  32. 32. 2. How is the increased Use of Mobile Devices Impacting the Legal Profession? B) How are BYOD policies impacting e-Discovery? BYOD can cause some eDiscovery challenges: • How do legal departments fulfill their litigation hold requirements during an investigation or litigation  if  they  don’t  own  the  devices  or  have  control   of the data? • How do you secure your IT network when BYOD devices are operating outside  of  the  IT  department’s  security  controls? • What details should a corporate BYOD Policy include? 32
  33. 33. 2. How is the increased Use of Mobile Devices Impacting the Legal Profession? B) How are BYOD policies impacting e-Discovery? BYOD can cause some eDiscovery challenges: • What happens when a key employee leaves and takes your company data with him on his mobile device? • What about loss of your Intellectual Property if an employee loses his network-connected cellphone that is not password protected? • Can a company remote-wipe a device owned by an employee? 33
  34. 34. 2. How is the increased Use of Mobile Devices Impacting the Legal Profession? B) How are BYOD policies impacting e-Discovery? BYOD can cause some eDiscovery challenges: • Personal mobile devices can undermine retention schedules and complicate preservation and production efforts in litigation • Information may be created, communicated, and/or destroyed beyond the knowledge or reach of corporate authority • BYOD policies should define the nature and extent of  the  enterprise’s  right  to   access, retain, and/or destroy data on the employee device for information governance purposes 34
  35. 35. 2. How is the increased Use of Mobile Devices Impacting the Legal Profession? C) What are some concerns specific to the use of mobile devices? Special concerns associated with mobile device data: • Mobile device data types present unique challenges during processing and document review as some of these file types cannot be processed or require conversion to an alternate file type for review • A large majority of devices have Internet capability therefore the presence of Internet history; multimedia messages such as: MMS and SMS; email; videos; as well as third-party applications are also all likely to contain user-created data…depending  on the mobile device these items may or may not be recoverable • Depending on the mobile device, deleted content may or may not be recoverable 35
  36. 36. 2. How is the increased Use of Mobile Devices Impacting the Legal Profession? D) Can you ethically search information that might be from personal accounts of your employees? Special concerns associated with mobile device data: • Mobile Device Management (MDM) software can help companies manage company and personal data on mobile devices in the workplace • MDM software often contains enterprise security features that protects company data while at the same time partitioning between employee personal data and company information • Should an employee who uses their personal mobile device for work-related tasks presume a reasonable expectation of privacy under the Fourth Amendment? 36
  37. 37. 3. How is the Use of Social Media Impacting e-Discovery A) How is social media impacting litigation? B) What are some best practices for corporations for monitoring social media content? 37
  38. 38. 3. How is the Use of Social Media Impacting e-Discovery A) How is social media impacting litigation? Special concerns related to social media information: • In web, cloud or social media investigation, investigator typically does not have direct access to hardware on which original data are stored • The data can change from minute to minute • Format of service changes from month to month • Service provider may or may not cooperate 38
  39. 39. 3. How is the Use of Social Media Impacting e-Discovery B) What are some best practices for corporations for monitoring social media content? Monitoring and investigating social media use: • As of July 2015, 37 states are considering or have already introduced social media legislation • Social media policies should be narrowly tailored and provide examples of protected confidential information so that they do not run afoul of NLRB guidelines • Ensure  that  those  involved  in  an  investigation  addressing  an  employee’s  social   media activity are aware that state laws may restrict requests for information about such activity Source: Social Media Privacy Legislation - Seyfarth & Shaw 2015-2016 Edition 39
  40. 40. 3. How is the Use of Social Media Impacting e-Discovery B) What are some best practices for corporations for monitoring social media content? Monitoring and investigating social media use: • Employers should carefully consider whether their social media policies comply with federal and state laws protecting the ability of employees to engage in statutorily protected activities • Agencies such as: Equal Employment  Opportunity  Commission  (“EEOC”);   Department of  Labor  (“DOL”);  Securities  and  Exchange  Commission  (“SEC”);   and  the  National  Labor  Relations  Board  (“NLRB”)  may  have  their  own  social   media rules and guidelines to consider Source: Social Media Privacy Legislation - Seyfarth & Shaw 2015-2016 Edition 40
  41. 41. 3. How is the Use of Social Media Impacting e-Discovery B) What are some best practices for corporations for monitoring social media content? Monitoring and investigating social media use: • Consent of the user • e-Discovery demand to user • Informal request to social network • Subpoena to social network • Search warrant for law enforcement • Find the data in an alternative, public location 41
  42. 42. 4. What are some jurisdictional issues that might arise based on Cloud data? A) Why does jurisdiction matter when it comes to Cloud computing, or collecting data from mobile devices? B) Are there data privacy regulations that need to be addressed? 42
  43. 43. 4. What are some jurisdictional issues that might arise based on Cloud data? A) Why does jurisdiction matter when it comes to Cloud computing, or collecting data from mobile devices? Complexity as to where the data is stored: • Many public cloud providers maintain global networks of servers move data freely across borders for capacity management reasons • Cloud providers are challenged with having to address how they adhere to privacy and disclosure requirements of the country where data originates or where data is currently stored 43
  44. 44. 4. What are some jurisdictional issues that might arise based on Cloud data? A) Why does jurisdiction matter when it comes to Cloud computing, or collecting data from mobile devices? Complexity as to where the data is stored: • If data is stored in multiple geographic jurisdictions, where are they? • What process determines where data is stored? • If data is copied or moved across jurisdictions, what process ensures that complete, accurate data can be accessed in a controlled fashion? • Is data being stored in any locations where privacy laws would make it difficult to retrieve data in response to a subpoena? 44
  45. 45. 4. What are some jurisdictional issues that might arise based on Cloud data? B) Are there data privacy regulations that need to be addressed? Data Privacy is an increasing concern globally • Who  has  the  ability  to  view  the  enterprise’s  data?   • How is potentially sensitive data managed? • How does the cloud provider adhere to the privacy requirements of specific nations or inter-state organizations? 45
  46. 46. 4. What are some jurisdictional issues that might arise based on Cloud data? B) Are there data privacy regulations that need to be addressed? Accessing the data may present challenges: • Does the provider limit the number of times data can be accessed? • How quickly can the enterprise retrieve data? • At what data rates can ESI be downloaded? 46
  47. 47. 4. What are some jurisdictional issues that might arise based on Cloud data? B) Are there data privacy regulations that need to be addressed? Accessing the data may present challenges: • Does the service provider offer tools, or other means by which an enterprise’s  internal  team  can  enforce  legal  holds  and  retrieve  selected  data? • What processes are outlined to deal with outages that may render ESI inaccessible? • Does the service provider comply with all applicable industry regulations, such as: GLBA; SOX; or HIPAA? 47
  48. 48. 4. What are some jurisdictional issues that might arise based on Cloud data? B) Are there data privacy regulations that need to be addressed? Accessing the data may present challenges: • Can  data  be  preserved  in  accordance  with  the  enterprise’s  internal  data   security and preservation policies? • Is data encrypted? If so, what encryption processes are used? • Is data encrypted both in transit and at rest? 48
  49. 49. 5. Conclusion A) Concluding Remarks B) Q&A 49
  50. 50. 5. Conclusion A) Concluding Remarks Suggestions for addressing some of these issues: • Assemble and coordinate efforts through a cross-functional expert team from storage administration, datacenter operations and financials, content and messaging services, legal, risk, and compliance • Embed information security, breach notification, compliance, accessibility, recovery point, and recovery time goals in service-level agreements • Establish organizational ownership and accountability for cloud-based information management vendor relationships 50
  51. 51. 5. Conclusion A) Concluding Remarks Suggestions for addressing some of these issues: • Create a process which segregates company data from personal data, eliminating potential Fourth Amendment concerns • Creating a Bring-Your-Own-Device (BYOD) device policy to regulate how devices should be used must be seriously considered • Develop workflows and procure the technology to retrieve discoverable data off of mobile devices for review which reduces the amount of employee personally identifiable information (PII) introduced into the eDiscovery life cycle Source:    “Challenges  of  Mobile  Devices,  BYOD  and  eDiscovery”  – Haman Allen and David Herman – September 2015 51
  52. 52. 5. Conclusion A) Concluding Remarks Suggestions for addressing some of these issues: • Know who in an organization uses mobile devices as well as the device type and how the device is used • Create a plan for the preservation of mobile device data • Know the full functionality of the mobile device…there  are  key  differences   52
  53. 53. 5. Conclusion A) Concluding Remarks Suggestions for addressing some of these issues: • What statutory compliance issues are applicable to you or your corporate client (HIPAA; HITEC; SOX; GLBA) • States may have unique social media laws • Stored Communications Act may play a role • Foreign jurisdictional issues are likely to be a concern 53
  54. 54. 5. Conclusion – Reference Materials Additional Reference Materials • www.privacyassociation.org – International Association of Privacy Professionals • www.edrm.net – Electronic Discovery Reference Model • www.iltanet.org – International Legal Technology Association • www.iginitiative.com/ - Information Governance Initiative • www.Arma.org – Association of Records Managers and Administrators • www.legaltechnews.com – Legal Technology News • www.infogovbasics.com/best-practices/defensible-deletion/ - Information Governance Basics 54
  55. 55. 5. Conclusion • Additional Resources For This Topic Will Be Provided at the ACEDS Website – www.aceds.org • ACEDS Global Advisory Board Member: • Scott Cohen, CEDS – scohen@winston.com • ACEDS New York Metro Area Chapter: • Joe Alonzo – President – joe.alonzo@glenmontgroup.com • ACEDS New York Metro Area Chapter – Educational Committee Co-Chairs: • Brad Schaffel, CEDS - Bradley.Schaffel@wilmerhale.com • Joe Bartolo, J.D. – jbartolo@jsl-hq.com 55
  56. 56. 5. Conclusion • Additional Resources For This Topic Will Be Provided at the ACEDS Website: www.aceds.org • Panelist Contact Information: • Alan Winchester, Esq. – awinchester@harrisbeach.com • Dera Nevin, Esq. – dnevin@proskauer.com • Anthony Vescova – avescova@nixonpeabody.com • Scott Gibbs, EnCE – scott@DirectDataDiscovery.com • • ACEDS New York Metro Area Chapter – Educational Committee Co-Chairs - Moderators: • Brad Schaffel, CEDS - Bradley.Schaffel@wilmerhale.com • Joe Bartolo, J.D. – jbartolo@jsl-hq.com 56
  57. 57. 5. Conclusion • Information about Women in e-Discovery: http://www.womeninediscovery.org/chapters/new-york-city www.womeninediscovery.org • Board Membership Information: Chapter Director – Zelda Owens Assistant Director – Dana Post Meetings Director – Maribel Rivera Membership Director – Erika Kilborn Secretary – Nikki MacCallum Email questions to: newyorkcity@womeninediscovery.org 57
  58. 58. 5. Conclusion Information about The New York City Paralegal Association: • nycpaparalegals@gmail.com • www.nyc-pa.org • Board Membership Information: President – Shaun J. Pilcher president@nyc-pa.org Vice President and Membership Chairperson – Jessica Crisalli-Weimer vicepresident@nyc-pa.org Secretary – Jessica M. Mieles secretary@nyc-pa.org Treasurer and CLE Chairperson – Mariana Fradman treasurer@nyc-pa.org and cle@nyc-pa.org Professional Development Coordinator – Gillian Gayle professionaldevelopment@nyc-pa.org 58
  59. 59. 5. Conclusion – Reference Materials Additional Reference Materials • “Guide  Seeks to Bring You Up to Date With Burgeoning Social Media Privacy Laws”  – Corporate Counsel – Rebekah Mintzer – September 2015 http://www.corpcounsel.com/id=1202738137754/Guide-Seeks-to-Bring-You-Up-to-Date-With-Burgeoning-Social- Media-Privacy-Laws#ixzz3n3BrLlC5 • “The  Challenges  of  e-Discovery  and  International  Privacy  Laws”  – Legal Tech News – Erin Harrison – September 2015 http://www.legaltechnews.com/id=1202738460530/The-Challenges-of-EDiscovery-and-International-Privacy- Laws#ixzz3n93qz0nQ • “The  Intersection Of Trade Secret Law And Social Media Privacy Legislation”– IP Watch – Eric Barton – January 2015 http://www.ip-watch.org/2015/08/20/the-intersection-of-trade-secret-law-and-social-media- privacyhttp://www.cmswire.com/cms/information-management/bracing-for-the-ediscovery-dangers-of-byod- 021639.php-legislation/ • “Bracing  for the e-Discovery Dangers of BYOD”  – CMS Wire – Ajith Samuel – July 2013 http://www.cmswire.com/cms/information-management/bracing-for-the-ediscovery-dangers-of-byod-021639.php 59
  60. 60. 5. Conclusion • Thanks You For Attending • Thanks to Nixon Peabody for Hosting This Event • Thanks to Our Event Sponsors: Nixon Peabody; Ricoh; DTI • Thanks to Our Subject Matter Expert Panelists • Thanks to Litigation Video Technology Services (litvideotech.com) • Thanks to Kiersted Systems for sponsoring the Videography Services • Questions: www.aceds.org ACEDS • Questions: www.nyc-pa.org The New York City Paralegal Association • Questions: www.womeninediscovery.org Women in eDiscovery Powerpoint by Joe Bartolo, J.D. – Kiersted Systems – jbartolo@Kiersted.com V.P. of ACEDS Metro New York Area Member Advisory Board 60
  61. 61. 5. Conclusion • QUESTIONS & ANSWERS 61

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