Legalweek 2020 brought together thousands of legal professionals to discuss business, regulatory, technology and talent drivers impacting the industry. The week featured workshop boot camps, conferences, networking events and hundreds of technology exhibitors on the tradeshow floor. There are three main conferences: Legaltech (the world’s longest running legal technology trade show), LegalCIO, and Legal Business Strategy. Around the main conferences there are many other events, a few of these are highlighted below. The following week The Sedona Conference’s International Working Group 6 annual program focusing on cross-border discovery and data privacy was held at the New York Law School.
AI and Privacy
This year’s Legalweek in New York City was dominated by the themes of AI, new and developing technologies and privacy. The impact of privacy regulations, particularly the GDPR and the California Consumer Privacy Act (CCPA) is driving up compliance costs and also the cost of discovery in legal proceedings. It is also leading to the development of eDiscovery technologies designed to identify protected information in order to redact or de-identify it in legal proceedings.
The AI bootcamp workshop included discussion about finding uniformity and standardisation of AI. While many countries and professional associations are issuing AI and ethics guidelines, the challenge of standardisation and implementation need to be addressed. From the legal perspective the challenges within AI, such as unconscious bias, are significant. These require both guard rails and a diverse range of appropriately skilled personnel to be involved in data projects involving AI. In several sessions, the importance of Ethics Councils for AI and Information Governance Councils to govern data and information were a feature of discussions.
One of the keynote presentations was by Bettina Warbug who is a blockchain researcher, entrepreneur, and co-author of the book, ‘Basics of Blockchain’. A political scientist by training, she has a deep passion for the intersection of politics and technology (you can view her TedX talk here -https://www.ted.com/speakers/bettina_warburg). Bettina highlighted that in the future everything that can be done digitally will be reimagined on blockchain. This will extend reimagining of physical assets as digital twins on virtual machines. Bettina explained that blockchain in transforming the economy will require machines moderated by both context and rules. According to Bettina Warburg, the ways in which blockchain will impact the law include:
- Code as law or machine arbitration. This includes smart contract languages, blockchain virtual machines, machine learning systems, and algorithms for machine based arbitration in autonomous software stack.
- Compliance innovation where there will be real time compliance audits for any given stat to ensure regulatory requirements are observed, and smart assets that can automatically comply based on the stateful context and rules relevant to them.
- eDiscovery and mutable records. Blockchain will provide new ways to comply with privacy regulatory developments, while also maintaining the benefits of a stateful and persistent network.
Impact of privacy laws on eDiscovery
The Judges Panel at Legalweek together with other sessions dealing with cross-border discovery highlighted the challenges of new privacy regulations for document production in litigation and regulatory investigations. The takeaways from the Judge’s Panel and the 5th Annual Exterro + EDRM survey of some 260 U.S. Federal Judges are:
- Judges want to see greater e-discovery participation from in-house legal teams.
- New data privacy laws will make e-discovery more expensive.
- Bad faith and poor communication are the leading causes of sanctions. Parties are getting sanctioned for (mostly) intentional e-discovery misconduct.
There was an excellent panel discussion on strategies to overcome the conflict of laws in eDiscovery led by Daniel Meyers - Transperfect Legal Solutions, James Sherer – Baker Hostelier, Emily Fedeles - Colgate Palmolive and Katie Perekslis - Transperfect. This panel discussed the challenges of irreconcilable priorities when managing data flows in legislation and investigations. Discovery obligations often conflict with privacy regulations, blocking statues, bank secrecy laws and state secrecy laws. The discussion included strategies to overcome the conflict of laws including implementing data minimisation as required by the GDPR, CCPA and Australia’s APPs, which is part of good information governance, as well as on site processing and reviewing of data. Explanations were provided of the different technology tools that can be used to identify and redact personal data.
Key tips from this presentation included:
- Think strategically from the outset. Early identification of discovery obstacles and issues allows a party to manage the discovery process more effectively.
- If discoverable data is subject to foreign data protection laws, understand what exceptions may be available to enable transfer, and consider involving local counsel.
- Assess what can be done abroad to minimise conflicts – this may include setting up a temporary cloud in the foreign jurisdiction, local data processing and/or review, and using technology to redact non-essential protected information to achieve compliance with foreign regulations and meet eDiscovery obligations
Another excellent session was on the impact of collaboration and the use of mobile devices with Robert Cruz, Jonathan Rudolph, Gregory Breeze all of Smarsh and Anthony Diana of Reed Smith.
The increasing use of platforms such as Slack, Microsoft Teams and Zoom presents challenges for both record retention and discovery. The key for organisations is to understand the risks that these platforms present when confronted with a regulatory investigation or the need to preserve and produce data for discovery for legal proceedings. Organisations can then evaluate these risks in order to weigh work and project collaboration convenience against regulatory compliance obligations, eDiscovery burdens, and archiving and perseveration challenges.
Emojis – communication
The increasing and accepted used of emojis in business contexts is giving rise to a new critical risk element in corporate communications. In particular, it provides new challenges in the discovery process, to ensure that all relevant documents including emojis are identified and produced. The session also discussed emerging technology that helps to target risky communications containing charged words and emojis.
A very interesting overview was provided of the leading cases where emojis had been considered in judgments. The graph below shows the significant increase of emojis in court opinions in the US in the last few years.
While a number of sessions were dedicated to the role of Information Governance, it was interesting to see how the continuing development of emerging technologies highlights the need for robust information governance. As noted above, a significant driver is data minimisation as a result of recent and anticipated privacy regulations, including the GDPR and CCPA. In the collaboration and mobile device session referred to above, the point was made that -
It all starts with Good Governance
The importance and role of an Information Governance Council or Committee was raised in a number of sessions dealing with technology challenges as well as in sessions where IG was front and centre. The existence of a cross-functional committee which meets regularly and discusses use cases is key. The Smarsh panel discussion emphasized that the focus needs to be on the entire organisation when evaluating use cases and not limited to isolated areas. The increased awareness around data risk in relation to privacy laws, regulatory compliance and reputational considerations highlighted the need for enterprise-wide Information Governance. This should include accountability measures and sanctions for those employees (including senior executives) who don’t follow policies and procedures.
Nick Inglis and Ann Snyder from ARMA gave a terrific presentation on ARMA’s IG model and the underlying work they are undertaking to build out the model to provide a comprehensive guide to members on Information Governance for 2020.
Ari Kaplan’s Legalweek 2020 podcast
You can also listen to leading legal industry analyst, Ari Kaplan’s podcast mixtape from a variety of over 25 legal industry leaders perspectives recorded during Legalweek 2020 at https://lnkd.in/dkANsJs. From down under it includes Rod Vawdrey of Nuix, Tineke Mann of TIMG and Susan Bennett of InfoGovANZ.
Other events and networking
Legaltech is a great week as everyone is in the one place, all the leading experts, together with technology providers. Many are from all over the world, who all have perspectives of how legal technology is impacting the delivery of legal services. It is great to share experiences and discuss issues, while catching up with the latest technologies and trends. There are many events both in and around Legalweek where you can catch up with colleagues and network with industry peers. A few of these are highlighted below.
Commonwealth Brunch and Super Bowl
Our week kicked off with the traditional Sunday Commonwealth Brunch in the famous Tavern in the Park. Special thanks to James MacGregor of Consilio LLC, Matthew Geaghan of Nuix, and Amit Pandit of Apt Search & Selection for organising and continuing this great tradition started by our late dear friend Nigel Murray to start LegalWeek. Chris Dale was also missed - we wish him a speedy recovery and look forward to his return next year’s event. This is our photo from last year – the lack of a photo from this year's brunch is attributed to my jet lag oversight!
The NFL Super Bowl took place on the Sunday night and many thanks to Jo Sherman – EDT and Oscar Bleetstein who hosted a gathering at home complete with celebratory cake. The Kansas City Chiefs won the Super Bowl defeating the San Francisco 49ers 31-20.
One of the highlights from Legalweek is the announcement of our affiliation with EDRM as an Industry Alliance Partner. Since 2005, EDRM has delivered leadership, standards, best practices, tools, guides and test datasets to improve best practices throughout the world, including its Electronic Discovery Reference Model (EDRM). The photo below shows Judge Peck (ret) and Wendy Axelrod at the second EDRM cocktail reception – each of these events had over 300 people in attendance.
Consilio Reception - Rainbow Room
A highlight was attending iconic Rainbow Room for Consilio’s Legalweek event. Thanks to Mark Garnett of Consilio LLC (pictured below) and to James MacGregor and Matthew Geaghan for taking the photo below as well as their selfie.
The Sedona Conference WG6 at New York Law School
Legalweek was then followed by Sedona’s international WG6 annual program held at New York Law School. But first, and in between conferences, there was Saturday night in Brooklyn with dinner at DUMBO with its stunning view of New York city skyline.
The Annual Sedona WG 6 meeting was held at New York Law School in Tribeca where Dean Anthony W. Crowell welcomed us. A number of Sedona draft publications were considered at the meeting, including the APAC eDiscovery Overview paper, which has been in development over the past 18 months by the WG6 APAC committee.
The Judges panel below with their Hons. Michael M. Baylson, James C. Francis IV (ret.) and Kimberly C. Priest Johnson, moderated by Ken Withers, provided an update on cross-border discovery and disclosure case law. I participated on the cross-border discovery and investigations and data protection laws updates panel, addressing recent significant developments in the APAC region with new privacy laws and regulations in a number of countries. On this truly global panel, I was joined by Karyn Harty - McCann Fitzgerald (Dublin)who spoke on the hot topic of Brexit and the ensuing uncertainty of the UK’s position in relation to data transfers. Dino Wilkinson - Clyde & Co (Abu Dhabi) outlined emerging data protection laws and considerations throughout the Middle East region, Jerami Kemnitz - Littler Mendelson (Minneapolis) - Littler Mendelson (Minneapolis) providing an in-house perspective. The panel was moderated by Denise Backhouse, Littler Mendelson (New York). Dialogue also centred on the differing impact of the GDPR in the various regions and the issue of harmonisation of global data protection laws.
The key takeaways for Legalweek 2020 included:
- New ways of communicating and working (e.g. using Teams, Slack and emojis) present significant risks and challenges for organisations for record keeping obligations and eDiscovery.
- Emerging and developing collaboration and communication technologies present challenges in discovery and document production processes and are driving up costs. However, new eDiscovery tools are being developed to address these issues.
- Over-retention of data increases overall risks and costs, including privacy breaches and eDiscovery burdens.
- Organisations need to be more proactive in implementing information governance to anticipate eDiscovery obligations and build in privacy by design and default. Technologies are developing to help meet compliance needs, including automated contract review applications.
- Organisations need to have in place justifiable data retention and disposal policies, which are implemented and updated on a continuing basis.
- It all starts with good governance - now more than ever, organisations need to implement robust enterprise-wide information governance to optimise the value of data as well as minimise the risks and costs.
Rapid developments in technology will continue to change the way in which legal services are provided and more significantly impact the way in which society functions. The role of law and the responsibilities of professionals providing legal and technology services are more important than ever. The opportunities to view the latest developments in technology and to hear and discuss trends as well as network makes for a great trip to New York City.
Special thanks to Denise Backhouse – Littler, Jo Sherman – EDT, Oscar Bleetstein, Taylor Hoffman – Swiss Re, Andrea D’Ambra and David Kessler from Norton Rose, Peter Baumann – Active Navigation, Wendy Axelrod, David Rohde – Epiq, Anthony W. Crowell – New York Law School, Ari Kaplan, Paul Muller, Matthew Geaghan, Enzo Liscotti, Simon Barnier and the team from Nuix, and Mark Garnett, James MacGregor and the team from Consilio LLC.
Susan Bennett (LLM(Hons), MBA, FGIA, CIPP/E) is the Founder and Executive Director, Information Governance ANZ and Principal, Sibenco Legal & Advisory