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Legaltech 2018: Day Three Recap

Created on February 2, 2018

E-Discovery Market Analyst at Exterro

If it’s Thursday, it must be the last day of Legaltech. I’m writing this blog post knowing the party convention is over, the exhibit booths are packed (personally), and the attendees are largely heading out of town, back to their jobs, to put to use the new skills and ideas they’ve learned and the new toys they’ve acquired (or will be acquiring shortly).

Like day one of the conference, day three started off with an interesting topic that was related to, if not part of, the world of legal technology. The panel conversation was titled Fake News Eats the World; and the engaging, spirited conversation that followed lived up to its promise. There are more details on the day three live blog, but the panelists made some interesting observations:

  • While the term is new, the phenomenon itself is not.
  • There are, per Tori Ekstrand, a few categories of stories that are tabbed as fake news, including: istakes by the media; disinformation knowingly shared to cause harm; malinformation, spreading information that’s true but is supposed to stay private; and as a rhetorical device, using the term to discredit political opponents.
  • Who can serve as a truly impartial arbiter of truth? Government, courts, and even the "marketplace of ideas" can be wrong, overstep authority, or result in threats to individuals with dissenting ideas.
  • The social capital acquired by sharing stories on social media is completely independent of its veracity.

The conversation felt like it could have continued for hours, so it’s hard to say it reached a conclusion, but if I were to propose one, it would be that laws and regulations designed for the traditional print and broadcast media are inadequate tools to prevent the dangers caused by the malicious or inadvertent spread of “fake news.”

Moving back to matters more near and dear to the practice of e-discovery, we also covered panels on IoT and defensible disposition of ESI. It’s shocking to think about, but there are more IoT connected devices (estimated at over 8 billion) than there are living people (7.7 billion)—and that number is poised to grow to 20 billion in just three years. These devices, ranging from appliances and cars to light bulbs and thermostats collect data about us and our behavior in seemingly innocuous ways, but also pose widespread threats to privacy and cybersecurity. The law has not kept up with these devices. And as Judge Andrew Peck said in Exterro’s upcoming 2018 Judges Survey: “it is incumbent on counsel to educate the Court about the use of different technologies and defensible processes, as judges may not have formed opinions on new technologies.”

The final panel of our day focused on defensible deletion, a policy that makes eminent sense in theory, but rarely gets put into practice. Many companies default into a “retain everything” policy because employees are fearful of deleting useful or valuable information; don’t feel empowered to delete data; or recognize the decreasing cost of large-scale data storage.

However, keeping everything isn’t, in itself, beneficial. It increases cost and risks. It can decrease worker productivity. What often happens is that otherwise sensible policies get over-ridden or ignored for antiquated opinions. Legal holds and data analytics aren’t viable reasons to keep everything; in fact, creating a reasonable retention policy, documenting it, and following it is usually satisfies the court. New Mexico Oncology and Hematology Consultants, Ltd. v. Presbyterian Healthcare Services provides a solid example of this.

Thank you very much to everyone who checked out our live blog from Legaltech NY this year. I hope you got some valuable information from our posts and that you'll sign up for weekly digests at https://www.exterro.com/blog/.