2013 Technology in the Law Symposium.

Transcription

1 2013 Technology in the Law Symposium Predicting: The Future November 13, 2013 THE McDermott Building Washington, D.C.

2 2013 Technology in the Law Symposium Corporations and their counsel are increasingly employing analytics technology to solve many of today s most challenging and expensive exercises outside of a legal context. That same analytics technology is the basis of predictive coding, a document review methodology that, while shown to lower the costs associated with the most expensive part of any litigation, has not been widely adopted by litigants or courts. Within the last few years, judges across the United States have reviewed, scrutinized and, in many instances, endorsed or adopted predictive coding models as an acceptable way to search for relevant data. But the technology is not without its detractors. Naysayers question the reliability of predictive coding, but even they are hard pressed to find a more cost-effective way of dealing with the dramatic increase in data with which litigants must regularly contend. Co-sponsored by the E-Discovery Committee of the D.C. Bar Litigation Section, McDermott Will & Emery s inaugural Technology in the Law Symposium will focus on the opportunities and challenges often experienced with this advanced technology in modern law practice. Attendees will include keynote speaker Judge John M. Facciola as well as C-level executives, corporate counsel and regulatory and litigation thought leaders. We hope you will join us in Washington, D.C., as our panels of leading software developers, litigation and corporate counsel, and distinguished members of the judiciary and federal government discuss the origins of predictive coding, its strength and pitfalls, and best practices for using analytics to improve the handling of e-discovery and other types of legal services. 2 McDermott Will & Emery 2013 Technology in the Law Symposium The McDermott Building, Washington, D.C.

3 Agenda Wednesday, November 13, :00 12:30 pm Welcome Geoffrey A. Vance, Head of McDermott Discovery Practice Group; Partner at McDermott Will & Emery 12:30 1:30 pm Keynote Introduction: Predicting: The Future Hon. John M. Facciola, U.S. Magistrate Judge 1:30 2:45 pm Predictive Coding What Are the Courts Saying What are the courts saying about predictive coding? This moderated panel will discuss recent case law on the use of predictive coding. Through the discussion of U.S. cases such as Kleen Products, Global Aerospace, Gordon, Da Silva and Estate of Robert H. Brooks, Inc., the panelists will discuss issues such as proportionality, cooperation and reasonableness. Moderator Mollie Nichols, Partner, Redgrave LLP Panelists 2:45 3:00 pm Break Ed Larkin, Partner, Commercial Litigation, Edwards Wildman Dan Regard, Managing Director and CEO, ids Jessica Cullen Smith, Partner, McDermott Discovery Practice Group, McDermott Will & Emery Allison Stanton, Director of E-Discovery, FOIA and Records, U.S. Department of Justice Civil Division 3:00 4:15 pm Predictive Coding Pessimists and Promoters This session will provide a unique opportunity for developers of these tools to address the concerns of potential customers. The panel will include a discussion of the complaints and criticisms often heard about predictive coding and will address the real value proposition of the technology. Moderator Geoffrey A. Vance, Head of McDermott Discovery Practice Group; Partner at McDermott Will & Emery Panelists Tracy Greer, Senior Litigation Counsel for Electronic Discovery, Antitrust Division, U.S. Department of Justice Drew Lewis, Senior ediscovery Counsel, Recommind Jay Leib, Founder and Managing Member, NexLP Warren Rosborough, Partner, Antitrust & Competition Practice Group, McDermott Will & Emery McDermott Will & Emery 2013 Technology in the Law Symposium The McDermott Building, Washington, D.C. 3

4 Agenda Wednesday, November 13, :15 5:30 pm But I m Not a Litigator: The Use of Data Analytics in Other Areas of the Organization This moderated panel promises a lively exchange illustrating the variety of technological tools in the technology-assisted review, or TAR, toolbox. The technology used in predictive coding has been around for years. Corporations as well as the U.S. Government have utilized this technology in information governance and corporate compliance as well as other niche areas. Representatives of several of the leading predictive coding software companies will be faced with hypothetical fact patterns and asked how their particular technology can be used to achieve a variety of goals. Moderator Jason R. Baron, Of Counsel, Drinker Biddle & Reath LLP Panelists Leigh Isaacs, Director of Records and Information Governance (non-legal), Orrick, Herrington & Sutcliffe John Kocoras, Partner, White Collar & Securities Defense Practice Group, McDermott Will & Emery Kurt Michel, President and CEO, Content Analyst Sandra Serkes, President and CEO, Valora Technologies Kristian Werling, Partner, Corporate Advisory Practice Group, McDermott Will & Emery 5:30 pm Concluding Remarks Geoffrey A. Vance, Head of McDermott Discovery Practice Group; Partner at McDermott Will & Emery 4 McDermott Will & Emery 2013 Technology in the Law Symposium The McDermott Building, Washington, D.C.

5 Keynote Speaker Hon. John M. Facciola was appointed a United States Magistrate Judge in the District of Columbia in Prior to being appointed to the bench, he served as an assistant district attorney in Manhattan from 1969 to 1973, and was in private practice in the District of Columbia from 1974 to Judge Facciola joined the U.S. Attorney s Office in 1982 and served as chief of the Special Proceedings Section from 1989 until his appointment as Magistrate Judge. Judge Facciola is a frequent lecturer and speaker on the topic of electronic discovery. He is a member of The Sedona Conference Advisory Board and Georgetown Law s Advanced ediscovery Institute Advisory Board, and is the former editor in chief of The Federal Courts Law Review, the electronic law journal of the Federal Magistrate Judges Association. He was also a member of the board of directors of the Federal Judicial Center. McDermott Will & Emery 2013 Technology in the Law Symposium The McDermott Building, Washington, D.C. 5

6 Moderators and Panelists Jason R. Baron is of counsel at Drinker Biddle & Reath LLP and is a member of the Information Governance and ediscovery practice. He also serves on the adjunct faculty of the University of Maryland College of Information Studies, where he co-teaches a graduate level seminar on e-discovery. Jason previously served as director of Litigation at the U.S. National Archives and Records Administration from 2000 to As part of The Sedona Conference, he has served as co-chair of the Electronic Document Retention and Production Working Group 1, and as editor in chief of The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Practices in E-Discovery (2007), co-editor in chief of The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process (2009) and editor in chief of The Sedona Conference Commentary on Finding the Hidden ROI in Information Assets (2011). Jason was a founding coordinator of the TREC Legal Track, an international research project evaluating search and retrieval methods used in e-discovery sponsored by the National Institute of Standards and Technology, and served as coordinator of the track between 2006 and He also helped found the international DESI Workshop series, a unique forum for academics and lawyers to discuss issues of mutual interest involving e-discovery, information retrieval and artificial intelligence. He has served on various advisory boards, including on the board of directors of ARMA International, and as part of Georgetown Law s Advanced ediscovery Institute. Jason frequently writes and speaks in the United States and internationally on subjects involving preservation of and access to electronic records, including public records. Tracy Greer is the U.S. Department of Justice (DOJ) Antitrust Division s senior litigation counsel for electronic discovery, where she has been developing policies and practices addressing electronic discovery issues at the Antitrust Division for several years. She is currently chairing a DOJ working group addressing electronic discovery issues in affirmative cases. Tracy joined the Antitrust Division in 1997 in the Networks & Technology Enforcement Section where she worked on merger and Section 1 investigations involving computer hardware and software, high technology component manufacturing, internet-related businesses, financial services and the securities industry. Ms. Greer received her law degree from the University of Texas at Austin and her undergraduate degree from Brown University. Leigh Isaacs is director of Records and Information Governance (non-legal) in Orrick, Herrington & Sutcliffe s Washington, D.C., office. Though not a lawyer, she has more than 10 years of information governance experience and more than 25 years of experience in the legal field. Leigh assists with records management engagements, and her experience includes deployment of enterprise programs, development of information management and related policies and procedures, creation of retention schedules, on- and off-site storage considerations including outsourcing, process improvements, evaluation and implementation of technology solutions, and the disposition of information for dissolved entities. Leigh is a Certified Information Professional by the Association for Information and Image Management. An active member of ARMA International since 2004, she currently serves on the board of directors for the Greater Washington, D.C., chapter. She is also a published author and speaker on issues relating to information governance. John C. Kocoras is a partner based in McDermott s Chicago office. John focuses his practice on internal investigations, white collar criminal defense matters including Foreign Corrupt Practices Act (FCPA) cases and complex litigation. Prior to joining McDermott, John served for four years as managing director and regional counsel of the global investigations company Kroll, where he directly supervised investigators, forensic accountants and computer forensics professionals on FCPA matters and other international investigations. He also served for more than five years as an assistant United States Attorney in the Northern District of Illinois, where he represented the United States in federal criminal matters throughout investigations, trials and appeals, including cases involving white collar crimes, public corruption, terrorism and other violent crimes. John has worked as investigative counsel for the U.S. House of Representatives Judiciary Committee and as a law clerk to former Chief Judge James C. Cacheris of the U.S. District Court for the Eastern District of Virginia. 6 McDermott Will & Emery 2013 Technology in the Law Symposium The McDermott Building, Washington, D.C.

7 Moderators and Panelists Edwin M. Larkin is an experienced commercial litigator with a focus on complex commercial litigation matters. He represents clients in the insurance, financial services, advertising, consumer products, retail sales, manufacturing, professional services and entertainment industries. He has handled a variety of high profile matters in a wide range of areas including securities fraud, antitrust, RICO, consumer class action defense, advertising and marketing, products liability, breach of fiduciary duty and business disputes in state and federal courts in New York and in jurisdictions throughout the United States. Edwin has conducted numerous jury and bench trials in a number of jurisdictions. He has also handled several arbitrations and mediations. With more than 15 years of experience in matters involving electronic discovery issues, Edwin is among the country s most seasoned electronic discovery practitioners. Edwin s practice in the area of electronic discovery includes assisting case teams with the identification, collection, processing and review of electronically stored data. He has worked with most of the major e-discovery vendors and is familiar with all of the leading e-discovery technologies, including predictive coding systems and other TAR platforms. He routinely is asked to provide e-discovery technology recommendations to clients or case teams. Edwin also works proactively with clients on developing policies and procedures to deal with anticipated litigation associated with e-discovery issues including electronic document policies and protocols, privacy policies and privacy compliance, litigation hold policies and procedures, and the preservation and collection of electronically stored information, with particular attention to the changing data landscape in areas such as Big Data, cloud-based data and data analytics that are becoming an increasing focus in litigation and governmental investigations. Drew Lewis consults with outside counsel and in-house legal departments about effective discovery strategies and the benefits of implementing predictive coding solutions. Prior to joining Recommind, he worked as a commercial litigator with Baker Donelson out of the firm s Nashville office. Drew has handled all aspects of discovery in his representation of clients, and through his private practice has developed a streamlined approach to discovery that has helped many clients resolve their litigation favorably while still keeping costs in alignment with their budgets. Jay Leib is the managing member of NexLP LLC. Jay has successfully founded and led software start-ups throughout his career. Most recently, he was the chief strategy officer at Chicago-based kcura Corporation, a company focused on the e-discovery vertical. He has more than a decade of experience in the technology field and has worked in multiple roles on some of the largest e-discovery and fraud projects in the world. Before joining kcura, Jay was an executive at Ernst & Young s Fraud Investigative & Dispute Services practice. Prior to Ernst & Young, Jay founded Advocate Solutions Inc., where he invented Discovery Cracker the world s first shrink-wrapped e-discovery processing application. Jay s software applications have been recognized by numerous surveys and awards in technology and e-discovery fields. As a speaker, Jay has presented on Big Data, text analytics and predictive coding for several panels, webinars and podcasts. His specialties also include legal hold, processing, document management, emerging technologies and database design. Jay holds an MBA from the University of Notre Dame. Kurt Michel is the president and chief executive officer of Content Analyst Company LLC. Kurt has spent the last 20+ years working to apply innovative technology solutions to mission critical information management problems. He has experience in the document capture, enterprise content management, business process management, advanced search and advanced analytics markets. Prior to joining Content Analyst Company, he held a variety of management and sales roles with Oracle, Stellent and Optika. Kurt graduated from James Madison University with a Bachelor of Business Administration. Mollie Nichols is a partner at Redgrave LLP, bringing more than 25 years of experience as a litigator, law professor and legal consultant on issues involving electronic discovery and evidence in both civil and criminal litigation to the firm. She has advised law firms and multinational corporations on legal strategies regarding the preservation, collection and production of electronic information during the litigation process and the review and production of documents in the European Union for cartel and FCPA investigations. Prior to joining Redgrave LLP, Mollie was the director of ediscovery and Litigation Services for an AmLaw 50 firm. She has tried more than 25 cases as lead counsel, representing clients in private practice as well as in the U.S. government as an Assistant U.S. Attorney in Texas. Mollie also served as the associate director for Research and Professional McDermott Will & Emery 2013 Technology in the Law Symposium The McDermott Building, Washington, D.C. 7

8 Moderators and Panelists Development for the Courtroom 21 Project and taught Digital Discovery & Evidence and a legal technology seminar at William & Mary Law School. She received a J.D. and LL.M. in International Law from the University of Texas School of Law, and is admitted to practice in Texas and the District of Columbia. Daniel L. Regard, CEO and co-founder of Washington, D.C.-based idiscovery Solutions Inc. (ids), is a nationally recognized electronic evidence and case management expert with 20 years experience in consulting legal and corporate entities. A programmer and an attorney by training, Daniel has conducted system investigations, created data collections and managed discovery on some of the highest profile financial investigations of the last decade. He is responsible for the development and implementation of case and matter strategies that leverage technology to clients best advantage in both litigations and investigations. Daniel has both national and international experience advising on such issues as electronic discovery, computer forensics, database development, application software, data analysis and repository services. He has testified and worked as a testifying expert and as a court appointed neutral on issues of electronic discovery. He is an active participant in The Sedona Conference s Electronic Document Retention and Production Working Group 1 and International Electronic Information Management, Discovery and Disclosure Working Group 6, and serves on the Masters Conference for Legal Professionals Advisory Cabinet. Prior to founding ids in December 2007, Daniel was the national director of e-discovery for LECG. He was also the national director of Electronic Evidence & Consulting for FTI Consulting, and was a national leader of Analytical Dispute Services at Deloitte & Touche, where he managed multinational, multi-jurisdictional and multi-counsel litigation support projects. He began his career as the founder of a nationwide litigation-support practice. Daniel is the founder of b-discovery, a monthly e-discovery networking group that meets throughout the United States. He is a director of the Institute of Computer Forensic Professionals and a long-time associate of the Certified Fraud Examiners. Warren Rosborough is a partner based in McDermott s Washington, D.C., office. He focuses his practice on defending mergers and acquisitions before the DOJ and U.S. Federal Trade Commission and on antitrust-related litigation and counseling. Most of his experience involves technical and industrial products and markets, but he also has significant experience in beverage alcohol and media. In connection with defending clients before the DOJ, Warren has implemented advanced TAR methods in cooperation with the agency, resulting in a narrowly tailored production and reduced cost for the client. He was part of the McDermott team that was the first to use TAR according to DOJ s specifications in responding to a second request. From 2008 through early 2012, Warren served as a trial lawyer at the DOJ Antitrust Division. In that position, he led several merger investigations and participated in many others, in a wide range of industries, including media, satellite communications equipment, defense RADAR equipment, satellites and spacecraft, oil services equipment, aluminum cable sheathing, aerospace grade semiconductors, municipal waste, commercial trucks, enterprise resource software and flexible packaging. Sandra Serkes is a dynamic leader with an extensive background spanning more than 20 years in software marketing, product management and corporate strategy, particularly in document processing, computer telephony and speech recognition. One of Valora s original founders, Sandra has been actively involved in Valora since its inception in Today, she oversees Sales & Marketing, Finance & Administration, Operations, Engineering and Corporate Strategy. A graduate of Harvard Business School and MIT, Sandra is a frequent industry speaker and panelist. She is an active participant in the Women Presidents Organization, The Commonwealth Institute, the MIT Enterprise Forum, the Massachusetts Software Council and the Network of Harvard Alumnae. Additionally, Sandra serves on the boards of several technology and service start-ups. She was named a 2006 Woman to Watch by Womens Business magazine. Jessica Cullen Smith is a partner based in McDermott s Los Angeles office. She is a founder of what is now the McDermott Discovery Practice Group, and focuses her practice on electronic discovery and related issues. Jessica regularly works with clients in a broad spectrum of industries to develop practical, cost-effective strategies for managing the complex challenges that electronic data presents in many disputes. Jessica also assists clients with records management counseling before 8 McDermott Will & Emery 2013 Technology in the Law Symposium The McDermott Building, Washington, D.C.

9 Moderators and Panelists litigation commences. She has experience in handling transactional matters for media and entertainment companies. Jessica s past experience includes work on the acquisition of television stations; the acquisition, sale and distribution of cable channels; the creation of international joint ventures for the distribution of sports programming; financing arrangements for media companies; and the acquisition, sale and licensing of various media properties. Jessica is an active member of The Sedona Conference s Electronic Document Retention and Production Working Group 1. She is a vice-chair of the American Bar Association Corporate Compliance Committee and serves as co-chair of its Subcommittee on Document Retention and Electronic Documents. She is also a Fellow of the American Bar Foundation. Allison Stanton is the director of E-Discovery, FOIA and Records for the DOJ Civil Division. Among her responsibilities, Allison advises on complex e-discovery issues in civil litigation and investigations; develops e-discovery policies, practices and training for the Civil Division; works with the other DOJ divisions on e-discovery initiatives; advises federal agencies on e-discovery matters; and provides guidance on proposed changes to procedural rules, regulations and legislation affecting electronic discovery. Prior to joining the DOJ, Allison was an attorney with Hogan Lovells US LLP where she represented numerous clients in complex civil cases and criminal investigations, many of which included complicated e-discovery issues. She also developed proactive e-discovery plans for Fortune 500 companies, including document retention policies and litigation hold and response procedures. Allison teaches e-discovery at American University Washington College of Law and is the former chair of the D.C. Bar E-Discovery Committee. She is an established author and has spoken at numerous national and international e-discovery conferences. Allison received her law degree from the American University Washington College of Law, where she graduated summa cum laude, and received her undergraduate degree from Cornell University. She clerked in the U.S District Court for the Eastern District of Virginia for the Honorable Barry R. Poretz. Geoffrey A. Vance is a partner based in McDermott s Chicago office. A former law clerk for a federal trial judge and the previous partner-in-charge of the Firm s Trial Practice Group in Chicago, Geoffrey is one of the founders and the current leader of the McDermott Discovery Practice Group. He is a member of the Firm s Chicago Steering Committee and Associate Compensation Committee. Named by his peers as one of the 40 Illinois Lawyers Under Forty to Watch, Geoffrey concentrates his practice in complex commercial litigation, focusing on product and professional liability litigation, insurance controversies and other matters involving large-scale discovery projects. He has represented foreign and domestic clients in a number of state and federal courts and other dispute resolution settings. He assisted in and tried more than 20 matters to conclusion. He also regularly assists clients in creating practical, creative and cost-effective solutions to store and manage electronic information, both before litigation (in the form of electronic records management counseling) and during litigation (when litigants are required to preserve, review and produce electronically stored information as part of the discovery process). Geoffrey is a member of The Sedona Conference s Electronic Document Retention and Production Working Group 1 as well as other organizations charged with developing guidelines and standards for clients and providers of software and services related to electronic discovery. About McDermott Discovery McDermott Discovery is a practice group within McDermott Will & Emery that focuses on using technology to improve legal services in litigation, investigations, due diligence, compliance audits, government second requests and other projects involving the preservation, review and production of electronic data. It oversees document review facilities in Chicago, Silicon Valley and Washington, D.C. and is an industry leader in delivering tangible results and bottom-line cost benefits to its clients. McDermott Will & Emery 2013 Technology in the Law Symposium The McDermott Building, Washington, D.C. 9

10 Sponsors McDermott Will & Emery would like to thank the following 2013 Technology in the Law Symposium sponsors: Networking Reception 10 McDermott Will & Emery 2013 Technology in the Law Symposium The McDermott Building, Washington, D.C.

11 McDermott Discovery McDermott Discovery supports its internal case teams and external clients throughout the electronic discovery process, from the beginning of the engagement to the final resolution of the matter. Our goal is to find and implement sensible, accurate and cost-effective methods to increase the quality and efficiency of complex discovery challenges. Our lawyers and other discovery professionals are proficient at meeting the discovery needs of our clients engaged in large-scale litigation, due diligence reviews, internal investigations, ongoing compliance obligations and governmental second requests. We also regularly counsel clients on litigation readiness, records management, defensible data preservation, electronic data privacy, international cross-border data production issues, budgeting for discovery and vendor management. McDermott has successfully reduced client discovery costs by more than 85 percent over traditional methods employed by competitor law firms and consulting companies. We achieve these cost savings by recognizing that the single most expensive aspect of any discovery is the time typically billed by each hour a lawyer spends reviewing data. Our strategy is to send as few documents as possible to lawyer review and to increase the rate of review so that less time is spent making decisions with respect to each document. There are four critical steps to achieving the best outcome for accurate, defensible, cost-effective discovery: project planning, preservation and culling, early case assessment/data culling and managed document review McDermott Will & Emery. The following legal entities are collectively referred to as McDermott Will & Emery, McDermott or the Firm : McDermott Will & Emery LLP, McDermott Will & Emery AARPI, McDermott Will & Emery Belgium LLP, McDermott Will & Emery Rechtsanwälte Steuerberater LLP, McDermott Will & Emery Studio Legale Associato and McDermott Will & Emery UK LLP. These entities coordinate their activities through service agreements. McDermott has a strategic alliance with MWE China Law Offices, a separate law firm. This communication may be considered attorney advertising. Prior results do not guarantee a similar outcome.