Kevin Caulfield, a product line director at Wolters Kluwer ELM Solutions, understands that general counsel don’t want their departments to be viewed solely as cost centers. Many of them strive to show how they can be good business partners with other parts of their organization by focusing on initiatives that will help reduce costs and generate revenue. To Caulfield, one of the ways this can be achieved is through enterprise legal management technology. Although many long-established corporate legal departments have already made good use of this technology, he says, there are many growing companies that still may not realize the benefits of an enterprise legal management solution. His remarks have been edited for length and style.
Ransomware. Just the word itself is enough to chill the hearts of everyone from personal users to IT professionals to senior executives. May 12th’s massive attack took down hundreds, perhaps thousands, of companies and unknown numbers of individuals and institutions, including the United Kingdom’s healthcare systems (with possible impacts including critical patient care and historical medical records).
“Text mining” refers to software that can find patterns in text and extract meaning from them. It offers plenty of useful applications. For instance, law departments can benefit from text mining any time they collect a fair number of comments from surveys. I have used it myself for client projects.
Here’s how it might be useful for you. Let’s assume that a large number of your internal clients completed a satisfaction survey. One question was open-ended: “Overall, what would you like to say to the law department?” As a complement to coding those remarks by hand, text-mining software can spot commonly used words, classify the comment as favorable or unfavorable and even tease out thematic topics.
By Joe Calve
Every year, The BTI Consulting Group asks general counsel, chief legal officers and other purchasers of high-end legal services to name the biggest changes taking place in their departments. For the last few years, they most frequently cited the addition of in-house lawyers.
By David White / AlixPartners LLP
Responding to data breaches can be a tricky business. If not managed correctly, corporate liability can easily be exponentially compounded. The key to successfully managing any complex crisis lies in the planning. It’s important to develop a carefully laid-out process long before the fire alarms start ringing. Once they do, there’s usually not much space for thinking of creative solutions. That’s why we map out our escape routes and post them on the wall for all to see.
By T. Sean Kelly / FTI Technology
T. Sean Kelly, a senior director at FTI Technology, spends a lot of his time helping clients implement, and conduct information governance and e-discovery using, Microsoft Office 365. Kelly previously worked for Johnson & Johnson, where he was responsible for e-discovery issues across business sectors, advising internal stakeholders and outside counsel on best practices in collection, forensic technology, document review and cost control. The interview has been edited for style and length.
By Sheryl Koval Garko / Fish & Richardson
Sheryl Koval Garko is an intellectual property litigator in Fish & Richardson’s Boston office who enjoyed recent success in an influential trademark case decided by the U.S. International Trade Commission (ITC). Early in her career she benefitted from her firm’s support of women in its ranks. She still profits from that support, but she has also joined the leaders who have helped expand the ways women are supported. The interview has been edited for length and style.
MCC: Tell us about your intellectual property litigation practice and the kind of work you do for your clients. What attracted you to IP litigation specifically? Continue Reading Empowered by IP: A litigator is inspired by the challenges of technology and the support of her firm
By Daniel Garrie / Law & Forensics LLC
Seeking information from social media accounts is becoming commonplace in litigation. Obtaining social media discovery, however, can pose significant challenges, as this information can take many forms, involve different file types, be generated by different users and be extremely voluminous. To avoid pitfalls, requesting parties should avoid blanket requests and be specific about the social media material they want and need. Likewise, responding parties should fully produce social media data responsive to a request, and fully document redacted or withheld material.
Scott v. United States Postal Service
The case of Scott v. United States Postal Service illustrates the importance of tailoring social media requests. Scott was a personal injury case. To help prove the lack of injury, the defendants moved to compel the production of “all postings related to any type of physical or athletic activities from June 6, 2014, to present on all social media websites, including, but not limited to Facebook, Instagram and Twitter.” The plaintiff objected that this request was “immaterial and not reasonably calculated to lead to the discovery of admissible evidence.” The court found that the information sought was relevant but agreed that the request was overly broad. The court explained, “[A] request for discovery must still be tailored … . Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition … .”
The court found that the primary reason the defendants’ request was overly broad was that it lacked a connection to the relevant injuries for the case. The court distinguished Scott from prior similar cases where production was compelled by stating, “the Request for Production is overly broad to the extent that it seeks all social media postings ‘related to any type of physical or athletic activities from June 6, 2014, to present’ ” as opposed to “postings or photographs that reflect physical capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the accident.” As shown, when crafting requests, it is important to be specific in describing the information sought and to be sure to connect the requests to the relevant issues in the case.
In turn, parties should be careful to respond completely to requests for social media data. This can be difficult due to the multifaceted nature of social media content, which may contain posts, comments, threads, messages and “statuses” from various locations and contributors. In this regard, parties requesting social media data often assume they can readily receive all the information from a user’s account just as it appears in their browser. This approach is unrealistic. As one commentator has noted, “People tend to expect that elements linked or embedded into content will be included, but those elements are often hosted on completely different web platforms, or its hosting may have expired.”
The complexity of social media data, however, is no excuse for incomplete production, and failing to include relevant material can have serious consequences. D.O.H. v. Lake Central School Corp., for example, illustrates how incomplete production of social media can result in sanctions. In this case, the plaintiff was ordered to produce the following:
“[A]ny profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS [social networking service] applications for the relevant time period ‘that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.’”
D.O.H. v. Lake Central School Corp.
While there may have been a good case that this request was overly broad, that is what the court included in its order, and the plaintiff was bound to comply with it to the best of his ability. The plaintiff responded by producing “a portion of his Facebook account.” The defendants objected to the production because it failed to include wall comments, causes joined, groups joined, activity streams, messages, photographs, postings and SNS applications, and because the plaintiff failed to produce a privilege log.
Over the next several months, the plaintiff provided multiple supplemental productions, including a production of 1,045 pages of heavily redacted Facebook content and five pages of Twitter content. Defendants objected to the supplemental productions, claiming that the plaintiff “failed to include all relevant information from [plaintiff’s] social networking accounts and to include deleted portions of his social networking accounts.”
The court found that the plaintiff’s productions violated the court’s production order because they failed to include all of the plaintiff’s social networking information and a log for the redacted content. For example, while the plaintiff produced only five pages of Twitter content, the defendants located approximately 56 pages through their own efforts, and listed specific relevant tweets that were missing from the plaintiff’s supplemental productions. Further, the plaintiff never produced a privilege log for the redacted material. For these violations, the court issued sanctions, ordering the plaintiff to supplement the production and pay the defendants’ reasonable attorney fees and expenses from the discovery dispute.
As the Scott and Lake Central cases illustrate, all parties to an action should take social media productions seriously. They should strive to identify relevant social media information with specificity – and to do so early in the case. This will give them the best chance to formulate proper discovery requests, and to properly respond to the ones they receive.
Daniel Garrie is an arbitrator, forensic neutral and technical special master at JAMS, available in Los Angeles, New York and Seattle. He is executive managing partner of Law & Forensics LLC, and head of its computer forensics and cybersecurity practice groups, with locations in the United States, India and Brazil. He is also a cybersecurity partner at Zeichner Ellman & Krause LLP. He can be reached at Daniel@lawandforensics.com.
By Rees Morrison / Altman Weil, Inc.
Many law departments use a request for proposal (RFP) to choose outside counsel to represent them in a major matter, for a portfolio of matters likely to start over a period of time or on a panel. Typical RFPs describe the bidding protocol, expectations of the department and background facts for the firms. These facts generally include work that will likely need to be done, the annual number of similar matters in the past, the distribution of law firms used, fees paid, outcomes achieved, etc. RFPs are a comfortable, familiar tool, often involving the procurement function, but they are quite often heavy on text.