Aceds 2015 wie nycpa final oct panel slides

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

Cloud Computing, Mobile Devices, Social Media and other
Potential e-Discovery Nightmares…
October 27th, 2015
Thank You to Our Event Sponsors:

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

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

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

1. Introduction
• 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

1. Introduction
• 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

1. Introduction
• 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

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

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 Association – May 2015
12

1. Introduction – Sources of Data – Electronically Stored Information (ESI)
Source: “Digital, Social & Mobile Worldwide in 2015” – Simon Kemp – January 2015
13

E) How do law firms and corporate clients keep track of where potentially relevant
data resides?
14

Definition of CLOUD COMPUTING:
• (noun) - the practice of storing regularly used computer data on multiple servers that can
be accessed through the Internet
15

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

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

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

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

• 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

• 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

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

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

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

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

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

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

B) How are BYOD policies impacting e-Discovery?
D) Can you ethically search information that might be from personal accounts of your
employees?
28

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

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

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

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

• 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

• 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

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

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

B) What are some best practices for corporations for monitoring social media
content?
37

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

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

content?
• 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

content?
• 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

A) Why does jurisdiction matter when it comes to Cloud computing, or collecting data
from mobile devices?
42

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

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

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

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

• 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

• 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

5. Conclusion
B) Q&A
49

5. Conclusion
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

5. Conclusion
• 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

5. Conclusion
• 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

5. Conclusion
• 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

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

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

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

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

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

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

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

5. Conclusion
• QUESTIONS & ANSWERS
61

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