Law Technology Today From the ABA Legal Technology Resource Center
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From the time of the initial New York LegalTech conference 35 years ago, the legal profession has undergone substantial changes. The impact of technology upon society has created a multi-billion dollar eDiscovery services industry, which assists litigators in managing ever-increasing volumes of information. The recently revised Federal Rules of Civil Procedure, which went into effect on December 1, 2015, expound upon the changes made in 2006. Both the 2006 and 2015 revisions resulted from the growing amount of electronic data that must be handled during litigation.
LegalTech provides a wide variety of educational seminars on topics related to information governance and eDiscovery. In addition, the exhibitor floor provides a means for legal professionals to learn more about the various technological offerings available to their firms. The event this year was held February 2-4, and provided useful insight into several important issues. The educational seminars, many of which provided Continuing Legal Education credits, fell into the following informative categories:
Day One: Information Governance and Big Data; Disruptive eDiscovery and Data Trends; Advanced IT; Governance, Risk and Compliance; Corporate Counsel in the Electronic Information Age; Change is Coming (Exploring the Now and Near of eDiscovery and Legal Services); Corporate and Legal Obligations.
Day Two: Advantage-Analytics; Data-Related Risk; Optimizing Attorney Engagement for Better Client Outcomes; Corporate Legal IT; eDiscovery in Action; The New Normal (Coping with Today’s Leaner, Meaner, More Demanding Legal Environment).
Day Three: Government Investigations and Litigation; Legal Empowerment Through Information Technology; 2016 Information Governance Challenges; eDiscovery Breakthroughs (Analytics and the Changing Face of Discovery).
As evidenced from the talk tracks set forth in the agenda for the conference, the subject matter expert panelists at the event addressed topics ranging from information governance to trial support technology. The speakers at the conference included: federal judges, attorneys, litigation support professionals, and published authors.
With the continued buzz surrounding the revisions to the Federal Rules of Civil Procedure in 2015 the conference was particularly topical this year. At various sessions, the frequent use words such as “Proportionality,” “Transparency,” and “Cooperation” highlighted the importance of those terms. The modern litigator is expected to know more about their client’s technology. In order to fulfill their duties of professional competence attorneys will be expected to have at least a basic understanding of eDiscovery. The Rule 26(f) “Meet and Confer” process will have a heightened level of importance. If counsel does not feel comfortable discussing advanced technology issues, they will be encouraged to “bring their geek to court,” as Hon. Judge Andrew J. Peck, Magistrate for the U.S. Southern District Court, suggested during the opening keynote panel discussion on February 2.
Beyond the changes to the Federal Rules, mergers and acquisitions within the eDiscovery industry were a topic of widespread discussion during LegalTech. A recent spate of activity that has taken place leading up to LegalTech reveals several changes in the landscape of the services provider industry. In fact, OmniVere acquired my employer, Kiersted Systems, only a few days prior to LegalTech. Since Kiersted is now part of OmniVere’s group of companies, I am excited by the prospect of being part of a growing company. Rumors circulating at LegalTech referenced potential large mergers and acquisitions that are anticipated on the near horizon for the litigation support industry. As the old saying goes, “The only constant in life is change,” and this proves itself time and time again when it comes to eDiscovery.
Several experts that attended the conference were kind enough to provide me their thoughts about LegalTech 2016, and what they felt to be of vital importance. Below I provide observations and impressions of LegalTech that subject matter experts shared with me:
Hon. Judge Andrew J. Peck, U.S. Magistrate Judge, U.S District Court, Southern District of New York
“While there was a lot of discussion of ‘Information Governance’ at LTNY, I am not sure that companies in the real word are willing to spend money on this. They should, on a going forward basis to start, find a way to stop saving ESI that is of no business value. I also hope that at least the attendees of LTNY will be aware of the 12/1/15 amendments to the Federal Rules of Civil Procedure, and as importantly, the Advisory Committee Notes to the Rules. The old ways will no longer apply, in terms of discovery requests and responses. And of course I continue to push the use of Federal Rule of Evidence 502(d) non-waiver orders.”
Jason R. Baron, Esq., Of Counsel, Drinker Biddle & Reath, LLP
“What was evident at Legaltech 2016 is how new forms of data analytics are increasingly showing up in applications useful across a spectrum of areas of legal practice. This is in marked contrast to recent past conferences, where discussions were more solely focused on TAR (technology assisted review) tools to be used in eDiscovery. Those of us out in the vineyards preaching the gospel of information governance should be heartened by this development, as it validates what is being said about the need to practice smart analytics in addressing the challenges of legacy data, data overload, retention and compliance. I also appreciated ALM providing the opportunity for me to appear on stage with Judge Scheindlin and Prof. Dan Capra as part of the Day 3 keynote, to discuss the emergence of shadow IT applications in the workplace and to talk about the eDiscovery issues underlying certain recent controversies in the news. Legaltech may be one of a very few places where an oblique reference or two to issues involving the use of a private network server draws laughter.”
Tom Barnett, Esq., Special Counsel and eDiscovery Data Sciences, Paul Hastings
“There is starting to be a recognition of the unavoidable imperative in the legal industry to rethink long-accepted practices, technology and processes for handling document and data intensive tasks in discovery as well as in other areas such as M&A due diligence. The economic realities dictate that traditional but inefficient approaches are no longer economically viable and that more sophisticated technology, such as machine learning, artificial intelligence and statistical engineering, utilized in other industries will have be embraced to meet the demands of a more discriminating client base, tight deadlines and ever expanding data volumes and types. Business models across the board in the legal industry are under attack and will have to change significantly to survive.”
Sue Sepe, CEDS, Practice Support Technology Product Manager, Paul, Weiss, Rifkind, Wharton & Garrison, LLP
“Having attended LegalTech for many years, it was exciting to see a renewal of diversity. For a time, the entire conference seemed to have become limited to vendors promoting their proprietary eDiscovery processing and review tools, with not much else to see or learn. This year, I noticed a wider variety of both products and services, from information governance and cybersecurity to encrypted storage and artificial intelligence. (And the puppies were cute!)”
George Socha, Esq., Owner at Socha Consulting, LLC
“As I traveled the exhibit hall at LegalTech this year, I saw old school and new. The old? Quantitative information shown in rows and columns, grids, and tables. The new? The visual depiction of quantitative information in ways that allow us to more quickly and easily absorb, understand and synthesize large volumes of varied data.”
Hon. Ronald Hedges (Ret), U.S. Magistrate Judge, U.S. District Court for the District of New Jersey – Principal of Ronald J. Hedges LLC
“What caught my eye in 2016 was everything related to privacy and security. Vendors offered a wide variety of goods and services intended to protect electronic transmissions between attorneys, clients, and beyond. Those offerings also highlighted something not new, but of increasing importance, assuring the confidentiality and trustworthiness of communications beyond law firm or corporate firewalls through the Cloud and a bewildering variety of mobile communication technologies. I expect to see even greater emphasis on privacy and security at Legal Tech 2017!”
Patrick Burke, Esq., Senior Counsel, Seyfarth Shaw, LLP
“I left LegalTech this year thinking most about former FBI agent Eric O’Neill’s keynote Wednesday morning raising our consciousness on the insider threat to valuable data. A timely warning to up our game on data security from ‘spies’ within our corporations, government agencies, law firms, and eDiscovery vendors. The broad Legal Tech community holds some of the world’s most sensitive data, it’s our responsibility to safeguard it including from nefarious fellow employees.”
Scott Cohen, Director of eDiscovery Services, Winston & Strawn, LLP
“I was impressed with the increased focus on legal data analytics, especially within the context of the discussions on legal operations. In the eDiscovery world we’ve been immersed in data analytics for quite some time now as means of organizing data, streamlining review and generally driving down ESI volume. We are now seeing industry veterans together with experts from outside of the field of legal technology developing and applying innovative data aggregation and analysis tools and techniques that focus on a broader spectrum of information than just that which is used in discovery. Some are already being used to develop strategy, influence decision making and predict outcomes. I’m very excited about the prospects.”
Dera Nevin, Esq., eDiscovery Counsel and Director of eDiscovery Services at Proskauer Rose, LLP
“While the trade floor at first-glance seemed to offer more of the same, three things made an impact on me: (1) any product that doesn’t have one or more of machine learning, conceptual clustering or visualization either caught up this year and introduced those features and functionality, or has dropped out of the race – such tools and techniques are fast becoming the new normal; (2) there are promising new entrants to formerly single-source solutions, including for voice recognition, XML parsing, and in-line native redaction and great developments in viewers including mature video and audio offerings; (3) an increasing number of players are offering or developing IaaS or SaaS services. Overall, the technology is maturing to match the consolidation on the services side. I also noted the return of data consolidators such as Palantir, and that big organizations such as HP and Microsoft made a strong showing at this year’s show. Overall, this was a more coherent show than in previous years: the talks focused largely on security, data mobility and advanced analytics, and the technology on show actually reflected these capabilities and indicate how the legal issues arise. I was delighted by the presence of CodeX and the start-up row on the trade floor, and there were some fine showings by promising early-stage products, which gets me excited about what might come next.”
Ken Rashbaum, Esq., Partner at Barton, LLP.
“The speakers, as well as the exhibitors, appear to have finally embraced the notion that eDiscovery is a subset of information governance, and that without a reliable information governance program an organization’s compliance with its eDiscovery requirements will be hampered. There was also a gratifying realization among exhibitors and speakers that the relevant ESI universe does not end at America’s borders, and that the challenges of moving data across national borders, for litigation as well as business purposes, must be addressed with processes and technology in a way that keeps up with the rapidly changing legal and regulatory landscape.”
David Horrigan, Esq., eDiscovery Counsel and Legal Content Director, kCura
“Over the past decade and a half of attending LegalTech New York, the one thing I’ve noticed is how quickly trends change. The phrases, ‘predictive coding’ and ‘technology assisted review,’ were almost never spoken this year when only a few short years ago, they were mentioned in most educational sessions and booths. Even information governance now takes a back seat to cybersecurity. The one thing we do know is that two years from now, we’ll be talking about something completely different.”
Michelle Mattei, Associate Director, Healthcare Compliance, Medivation
“LegalTech is morphing once again. Years ago it was all able firms, shift occurred to in-house legal focus. Few years ago it was all about eDiscovery, this has shifted to a commodity type of business for either players who serve it all up or very specialized niche players. The new wave has arrived. Information security, data analytics and compliance, are now the new key target areas of interest and concern.”
Maribel Rivera, Marketing Manager, Information Governance Initiative
“There was no clear theme this year. Predictive analytics, information governance, SaaS models and cyber security were all topics that attendees were hungry to learn more about. You could also see this change in the exhibit hall with a number of new exhibitors and the many new attendees I met outside of eDiscovery.”
Philip Favro, Esq., Consultant at Driven, Inc., Director of Legal Education and Resources, Coalition of Technology Resources for Lawyers (CTRL)
“Information governance was the in vogue topic from Legal Tech. IG has traditionally been associated with data remediation, particularly for litigation purposes. While that was certainly a subject of discussion during the conference, the hot IG topics focused on information security, data protection, and cybersecurity. With all of the data-borne problems created by rogue employees, hackers, and technological innovations, IG is increasingly seen by clients, counsel, and the courts as a holistic solution for addressing the issues.”
Sandra Serkes, CEO of Valora Technologies
“What really popped out for me was the growing appreciation for non-cookie-cutter eDiscovery solutions, such as foreign language productions, documents with limited or missing metadata, and the need for automated redaction of sensitive information.”
Rob Robinson, Managing Partner at ComplexDiscovery
“According to some studies, 55% of communication is delivered by body language and 38% by vocal tone, with only 7% of communication dependent solely on words. Because of the importance of communication beyond words, the annual LegalTech gathering in New York continues to be an important ‘validation’ opportunity for participants to both hear and see how others feel about the latest trends and tools in the discipline of discovery. During this year’s event, the technologies and services that seemed to elicit the most emphatic responses from leading vendors, commentators, and consumers of eDiscovery software appeared to be focused on the increasing desire for eDiscovery automation, the growing acceptance of SaaS-delivery of eDiscovery, and the emerging affinity for self-service eDiscovery offerings. It also appears that differentiation of features is no longer the center of gravity for comparative discussions about competing offerings, as the center of gravity for comparisons seems to have shifted to the differences in delivery models (direct vs. indirect, on-premise vs. SaaS) and business models (pricing). With all this being said, it appears that fourth generation eDiscovery offerings that provide simplified eDiscovery automation and are delivered via SaaS and available with predictable pricing models will be at the forefront of both verbal and non-verbal eDiscovery conversations in the coming year.”
Tom Tigh, Director at OmniVere
“LegalTech is the largest legal industry event that features new products, new partnerships and the consolidation of forces. And this year confirmed it. There were fewer booths because of acquisitions—but the business models are changing as well. Technology is being accepted as a replacement for the rote tasks that can now be defined by rules and algorithms. We are no longer just trying to figure out better ways of doing what we used to do with paper—we are truly working to create value for clients by using technology and smart people. It’s scary for some because it seems to threaten the status quo and it’s not ‘business as usual’—welcome to LegalTech.”
Jo Sherman, CEO and Founder, EDT
“It’s always exciting to see new technological advances in our industry at LegalTech. One question I did ask myself this year though is: In developing increasingly sophisticated eDiscovery software over the last 15 years has our industry over complicated the process, we’ve alienated a large number of our potential clients and users and are left preaching to the choir? Has sophistication hindered adoption? Not for those who are already converted and are attending LegalTech, but for the thousands of black letter lawyers who are pushing paper back in their offices and who could actually really do with some help. As an industry I think we should ask ourselves whether we should really try to demystify eDiscovery in the future, to increase uptake across the whole legal sector, internationally.”
Brad Schaffel, CEDS, Litigation Support Manager, Wilmer Hale
“The biggest news to me this year at LegalTech seemed to be the cyclical acquisition season we find ourselves in. Not only are the acquisitions themselves noteworthy, so are the rumors that seem to follow. This trend of consolidation of services providers can certainly be tied to the commoditization of eDiscovery services.”
