James Sherer

In this article, the authors discuss the efficiencies as well as the risks for employers and agencies of using artificial intelligence in the job application process.

Regulators increasingly are scrutinizing employee use of personal devices and third-party messaging apps ― in particular, but not only, ephemeral apps where messages automatically disappear ― as employees continue to conduct business on multiple platforms and concurrent channels of communication. The Department of Justice (DOJ) recently issued its most comprehensive guidance to date on its expectations that companies preserve all business communications conducted on personal devices and… Show more

Regulators increasingly are scrutinizing employee use of personal devices and third-party messaging apps ― in particular, but not only, ephemeral apps where messages automatically disappear ― as employees continue to conduct business on multiple platforms and concurrent channels of communication. The Department of Justice (DOJ) recently issued its most comprehensive guidance to date on its expectations that companies preserve all business communications conducted on personal devices and messaging apps. And the Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) continue to aggressively enforce their recordkeeping rules against regulated entities that do not properly preserve their electronic business communications. Notably, while the SEC and CFTC have been focused on regulated entities, the DOJ’s guidance applies to all businesses. Show less

Use of artificial intelligence (“AI”) tools in eDiscovery creates new opportunities for attorneys. By extracting, analyzing, and applying information from large data sets, AI tools can provide new insights, systematize processes, speed time to resolution, and reduce costs. A notable example is technology-assisted review (“TAR”), a process that makes use of machine learning to prioritize or classify relevant material in document reviews. Legal practitioners may reduce costs, time, and mistakes… Show more

Use of artificial intelligence (“AI”) tools in eDiscovery creates new opportunities for attorneys. By extracting, analyzing, and applying information from large data sets, AI tools can provide new insights, systematize processes, speed time to resolution, and reduce costs. A notable example is technology-assisted review (“TAR”), a process that makes use of machine learning to prioritize or classify relevant material in document reviews. Legal practitioners may reduce costs, time, and mistakes by applying TAR in litigation, antitrust reviews, investigations, and other matters. However, as legal teams’ uses of these technologies evolve, ethical issues may arise, particularly with the opportunities for reusing the results of the computer learning in future matters, but for different clients. Show less

This paper defines the utilisation of ‘soft law’ concepts and structures generally, considers the application of soft law to the perceived gap between artificial intelligence (AI) approaches and normal human behaviours, and subsequently explores the challenges presented by this soft law application. The authors submit that AI is only becoming more prevalent, and increased uses of this technology logically create greater opportunities for ‘friction’ when human norms and AI processes intersect —… Show more

This paper defines the utilisation of ‘soft law’ concepts and structures generally, considers the application of soft law to the perceived gap between artificial intelligence (AI) approaches and normal human behaviours, and subsequently explores the challenges presented by this soft law application. The authors submit that AI is only becoming more prevalent, and increased uses of this technology logically create greater opportunities for ‘friction’ when human norms and AI processes intersect — especially those processes that seek to replace human actions, albeit inconsistently and imperfectly. This paper considers that friction as inevitable, but instead of offering wholesale objections or legal requirement application to AI’s imperfect intrusions into humans’ daily lives, the authors consider ways in which soft law can smooth the path to where we are collectively headed. As human–computer interaction increases, the true role of AI and its back-and-forth with humans on a day-to-day basis is itself rapidly developing into a singular field of study. Show less

This article explores, examines, and challenges one factor discussed and considered consistently within varying approaches—“Transparency”—in the context of “weak” artificial intelligence (“AI,” but AI that is weak only in terms of complexity, and in comparison with human beings). The article notes that considering Transparency in the context of AI is not a special consideration, as many previously unknown technologies are assailed with demands for Transparency upon their introduction into the… Show more

This article explores, examines, and challenges one factor discussed and considered consistently within varying approaches—“Transparency”—in the context of “weak” artificial intelligence (“AI,” but AI that is weak only in terms of complexity, and in comparison with human beings). The article notes that considering Transparency in the context of AI is not a special consideration, as many previously unknown technologies are assailed with demands for Transparency upon their introduction into the marketplace of ideas. The article addresses and rejects a standard of completely open Transparency for privacy, security, and practical reasons, and presents a framework of more general principles that propose to contour to real-world instances. It argues for the use of Soft Law as the only realistic approach to surfacing appropriate levels and types of Transparency, but rather than solving the issue (which the author declares it most decidedly does not do), it offers up its presented framework to specific tasks at hand as a tool to help drive consensus for the development, adoption, utilization, and judgment of AI. Show less

“AI & Ethics: The Roundtable and the Rule of Law,” discusses the recent Athens Roundtable on AI and Rule of Law, where participants analyzed and debated how to develop an ethical framework that would direct the use of artificial intelligence (AI) in support of legal endeavors and how to educate practitioners and users; and how to further, intelligently consider how an understanding of AI is key to the future of the rule of law and related practice. The article also includes a cameo by Nicolas… Show more

“AI & Ethics: The Roundtable and the Rule of Law,” discusses the recent Athens Roundtable on AI and Rule of Law, where participants analyzed and debated how to develop an ethical framework that would direct the use of artificial intelligence (AI) in support of legal endeavors and how to educate practitioners and users; and how to further, intelligently consider how an understanding of AI is key to the future of the rule of law and related practice. The article also includes a cameo by Nicolas Economou, Chair of The Future Society’s Law Initiative and of the IEEE Law Committee. Show less

“After Reading These 10 Shocking Tips for Staying Out of Trouble on Social Media, You’ll Never Post the Same Way Again” was originally presented in limited form as part of the proceedings of the Futures Industry Association’s 41st Annual Law & Compliance Division Conference on May 10, 2019. The article discusses how attorneys can (and should) use social media in the practice of law, and provides 10 tips for practitioner approaches on issues like advertising, professional conduct, record… Show more

“After Reading These 10 Shocking Tips for Staying Out of Trouble on Social Media, You’ll Never Post the Same Way Again” was originally presented in limited form as part of the proceedings of the Futures Industry Association’s 41st Annual Law & Compliance Division Conference on May 10, 2019. The article discusses how attorneys can (and should) use social media in the practice of law, and provides 10 tips for practitioner approaches on issues like advertising, professional conduct, record retention, and even the New York Times test. Show less

The utilization of artificial intelligence practices within clinical trials is a near inevitability, making the privacy concerns more a matter of “when,” not “if.” To illuminate the issue, the authors of this article examine a hypothetical instance in which data is generated by a Swiss company through a clinical trial process, and such clinical trial data is subsequently considered as the underpinning data to develop new drugs and medical practices.

A broad focus on “social media” is little help for organizations that want to—or are required to be active participants in its use. In order to engage in affirmative practices, and to carefully consider actual risks and benefits to an organization, that organization and its practitioners must start with the social media outlets the organization and its employees already use or are likely to use in the future, and subsequently, address what populations of individuals, both within and without the… Show more

A broad focus on “social media” is little help for organizations that want to—or are required to be active participants in its use. In order to engage in affirmative practices, and to carefully consider actual risks and benefits to an organization, that organization and its practitioners must start with the social media outlets the organization and its employees already use or are likely to use in the future, and subsequently, address what populations of individuals, both within and without the organization, are going to be engaged. This will define the actual universe of social media quarry the organization is targeting and will lead to better results with less tail-chasing. Show less

Within AI’s breathtaking possibilities lurk privacy concerns associated with this collectable, knowledge-yielding data. ML development not only relies on data but it also works best with exactly the personal data that most implicates privacy concerns. Why society or the law should care about how AI may be exploiting personal data is one issue; how to address privacy in this context is another. While AI development seems to be driving us toward a potential privacy crisis, it may also offer… Show more

Within AI’s breathtaking possibilities lurk privacy concerns associated with this collectable, knowledge-yielding data. ML development not only relies on data but it also works best with exactly the personal data that most implicates privacy concerns. Why society or the law should care about how AI may be exploiting personal data is one issue; how to address privacy in this context is another. While AI development seems to be driving us toward a potential privacy crisis, it may also offer solutions to it. Show less

By their nature, disruptive technologies, or those technologies that introduce change and upset the status quo, modify the way we work. But contrary to popular opinion, organizations that ignore these technologies do not miss out on the potential benefits they may bring because this is an
age when employees will embrace these technologies if they help get the job done, regardless of institutional permission or approval. Even acknowledging this still raises a host of new challenges, such as… Show more

By their nature, disruptive technologies, or those technologies that introduce change and upset the status quo, modify the way we work. But contrary to popular opinion, organizations that ignore these technologies do not miss out on the potential benefits they may bring because this is an
age when employees will embrace these technologies if they help get the job done, regardless of institutional permission or approval. Even acknowledging this still raises a host of new challenges, such as how to wrangle these technologies into existing specifications, like regulatory record requirements or existing contractual obligations, or how to deal with exceptions to normal business practices. Show less

The article addresses data mining and probabilistic machine learning and their application by investigators and Law Enforcement Agents in examining data, considering privacy and admissibility considerations while outlining related practices.

This article examines certifications and credentialing for e-discovery, data privacy, and information governance practitioners. It addresses both the individual asking the question and the current information law certification landscape, and considers whether a particular practitioner should pursue either an identified certification or, where more than one is offered by a particular organization, which certification will hold the most value if pursued.

This article details what various courts have held regarding Technology Assisted Review (TAR) in general, examines a number of TAR-process specifics, and provides some guidance for parties confronting the use of TAR in litigation.

This article examines the transition within the practice of law from consumer tech to legal intelligence engineering.

This Practice Note details key considerations and best practices for implementing a US-style legal hold abroad, including how to craft a cross-border legal hold policy and process and the main steps involved in issuing and executing a cross-border legal hold.

The article addresses the development of data algorithms associated with human behavior, and highlights the impact of data quality and size on the effectiveness of algorithms as well as those algorithms’ structures, application and effects (intentional or otherwise). The article outlines how these data-driven algorithms are written, and presents an accessible entry point to concerns associated with the utilization of algorithm-driven approaches for practitioners and decision-makers… Show more

The article addresses the development of data algorithms associated with human behavior, and highlights the impact of data quality and size on the effectiveness of algorithms as well as those algorithms’ structures, application and effects (intentional or otherwise). The article outlines how these data-driven algorithms are written, and presents an accessible entry point to concerns associated with the utilization of algorithm-driven approaches for practitioners and decision-makers alike.

The article also considers how algorithm practices and advances in AI intersect with the EU General Data Protection Regulation 2016/679 (GDPR) and the “right to be forgotten,” examining the issue of modular programming and a development framework that incorporates privacy by design. Finally, the article considers design principles and considerations of disparate impact, presenting strategic approaches and considerations for organizations adopting AI and even less sophisticated algorithm approaches generally. Show less

Advances in automated methods for contracting - or "contract cognition" - combine resources, benchmarking, and past practices from multiple business divisions, including records, procurement, legal, and operations teams. This article explores that approach by examining several use cases, including Portfolio Management for Risk Mitigation, Litigation, and Mergers & Acquisitions.

Ransomware is a constantly evolving threat that presents a variety of challenges to its potential victims, especially when targets are attempting to implement current and benchmarked guidance in response. These challenges are not only rooted in functionality and potential damage, but also due to the emergence of a viable business model facilitating Ransomware’s exponential growth as a tool for criminals. This article explores these challenges by providing an overview of Ransomware’s… Show more

Ransomware is a constantly evolving threat that presents a variety of challenges to its potential victims, especially when targets are attempting to implement current and benchmarked guidance in response. These challenges are not only rooted in functionality and potential damage, but also due to the emergence of a viable business model facilitating Ransomware’s exponential growth as a tool for criminals. This article explores these challenges by providing an overview of Ransomware’s development and spread and then examines the current, albeit unsettled, legal landscape surrounding Ransomware attacks and victim responses, to consider what the future might hold for regulation in this space. Show less

This article focuses on issue of data security in the context of Mergers, Acquisitions, Divestitures, and Asset Purchases—in particular, how the data security practices of the target of a deal matter now more than ever when acquirers are evaluating deal success rates, relative values, and the chances for success in the post-deal integration world.

This article examines how a considerable number of Data Leakage issues are perpetrated by people accidentally or guided by malicious direction or incompetence, and what that means for Technological and Information Governance solutions. Considering the duality of roles employees play in Data Leakage and that the hazardous outcomes are often accidental, we conclude that strict policy adherence is neither feasible nor available. Instead, a partially directed, partially improvisational approach… Show more

This article examines how a considerable number of Data Leakage issues are perpetrated by people accidentally or guided by malicious direction or incompetence, and what that means for Technological and Information Governance solutions. Considering the duality of roles employees play in Data Leakage and that the hazardous outcomes are often accidental, we conclude that strict policy adherence is neither feasible nor available. Instead, a partially directed, partially improvisational approach is an appropriate means by which an organization can consider and address Data Leakage issues associated with Insider Threats. Show less

Chapter 15 - "A Modest Proposal for Preventing e-Discovery Standards from Being a Burden to Practitioners, Clients, the Courts, or Common Sense," presents the case for e-Discovery standards based on output, examines a number of existing and proposed standards, discusses the application of tolerances, and presents considerations for standards for e-Discovery practitioners and technicians that shift attention from process to results.

Carole Hafner’s scholarship on the conceptual organization of case law knowledge bases (COC) applied concept indexation and concept search based on an annotation model of three interacting components combined with a system of expert legal reasoning to aid in the retrieval of pertinent case law. Advances since Hafner’s original scholarship in the form of (1) digitized case law and related materials; (2) computer science analytical protocols; and (3) more advanced forms of artificial intelligence… Show more

Carole Hafner’s scholarship on the conceptual organization of case law knowledge bases (COC) applied concept indexation and concept search based on an annotation model of three interacting components combined with a system of expert legal reasoning to aid in the retrieval of pertinent case law. Advances since Hafner’s original scholarship in the form of (1) digitized case law and related materials; (2) computer science analytical protocols; and (3) more advanced forms of artificial intelligence approaches present the question of whether Hafner’s COC model could move from the hypothetical to the real. This paper addresses those advances and provides a present-day process for the application of the COC model. Show less

Organizations may use modern analytic tools to evaluate insider threats, including ongoing fraud and corporate malfeasance. This process may also uncover those unintentional “bad practices” that can expose organizations to data breach or other leakage issues, and engage new behavioral analytics to identify those employees most likely to engage in harmful activities, before the employees have taken the first “wrong” step down that path. This paper considers those activities as well as the care… Show more

Organizations may use modern analytic tools to evaluate insider threats, including ongoing fraud and corporate malfeasance. This process may also uncover those unintentional “bad practices” that can expose organizations to data breach or other leakage issues, and engage new behavioral analytics to identify those employees most likely to engage in harmful activities, before the employees have taken the first “wrong” step down that path. This paper considers those activities as well as the care organizations should take when deploying these tools and consider some constraints for their operation and use. Finally, the paper considers how data from these tools can be distilled into reports appropriate for C-Suite review and utilization in support of executive decision making while still considering privacy and other employee and legal issues. Show less

Many attorneys are either blissfully unaware of the power and potential danger associated with the tools they now find themselves using on a daily basis, or are willfully avoiding a confrontation with reality. This article provides guidance for lawyers regarding technological know-how and its intersection with ethical obligations, focusing on at least a minimum level of technological proficiency as a fundamental component of professional responsibilities.

The "Nuanced Approach" article addresses application of data loss prevention strategies and related human behaviors to Data In-Use and related integrated endpoint actions and accessibility issues; Data In-Motion, including applied analytics and interwoven network traffic considerations; and Data At-Rest, which incorporates data location, management, storage issues, and post-event analysis. The article concludes that practices which incorporate considerations of (1) conclusions about events;… Show more

The "Nuanced Approach" article addresses application of data loss prevention strategies and related human behaviors to Data In-Use and related integrated endpoint actions and accessibility issues; Data In-Motion, including applied analytics and interwoven network traffic considerations; and Data At-Rest, which incorporates data location, management, storage issues, and post-event analysis. The article concludes that practices which incorporate considerations of (1) conclusions about events; (2) strategic decisions made before incidents (and technological additions) occur; (3) the legal and regulatory landscape; and (4) the personnel underpinning the operations of the organization may significantly improve existing practices and reduce the chance of future loss. Show less

The “Devil in the Details” article examines current attorney and third-party service provider practices within evolving Merger & Acquisition due diligence practices. The article specifically addresses how attorneys and service providers may incorporate new technologies—and considerations of new technologies—into the traditional deal framework, utilizing and relaying the results from a novel survey of third-party service providers, and discussing what services are currently supplied in this… Show more

The “Devil in the Details” article examines current attorney and third-party service provider practices within evolving Merger & Acquisition due diligence practices. The article specifically addresses how attorneys and service providers may incorporate new technologies—and considerations of new technologies—into the traditional deal framework, utilizing and relaying the results from a novel survey of third-party service providers, and discussing what services are currently supplied in this emerging area. The article concludes that there is still room for both additional thought leadership as well as service-provider services, and gives some thoughts on how this practice may advance in the future. Show less

“A Consideration of eDiscovery Technologies for Internal Investigations” focuses on the use of eDiscovery techniques and investigatory practices within modern forensic and investigatory matters. The article also includes sections on general strategies, early case assessment, search term and keyword considerations, pattern recognition, Technology Assisted Review, and even paper review.
The article was peer-reviewed and presented in support of the proceedings of the Global Security, Safety… Show more

“A Consideration of eDiscovery Technologies for Internal Investigations” focuses on the use of eDiscovery techniques and investigatory practices within modern forensic and investigatory matters. The article also includes sections on general strategies, early case assessment, search term and keyword considerations, pattern recognition, Technology Assisted Review, and even paper review.
The article was peer-reviewed and presented in support of the proceedings of the Global Security, Safety and Sustainability: Tomorrow's Challenges of Cyber Security 10th International Conference, ICGS3 2015, in London, UK on September 15-17, 2015. Show less

Given the ubiquitous nature of social media services, companies generally must assume that one or more of their core constituencies (employees, customers, or competitors) have discussed, are discussing, or will discuss the company on social media. This article proposes policy-building strategies modern companies may employ to help limit the risks associated with social media use, focusing on three core tasks: (1) assessing the company’s current social media footprint; (2) developing a social… Show more

Given the ubiquitous nature of social media services, companies generally must assume that one or more of their core constituencies (employees, customers, or competitors) have discussed, are discussing, or will discuss the company on social media. This article proposes policy-building strategies modern companies may employ to help limit the risks associated with social media use, focusing on three core tasks: (1) assessing the company’s current social media footprint; (2) developing a social media strategy; and (3) crafting appropriate policies for effective and compliant social media engagement. Show less

"Like This, Not That" analyzes the current legal landscape with respect to corporate social media use and offers advice on best practices for businesses. It suggests that social media policy development must contemplate a variety of factors, including what the organization seeks to accomplish; which platforms will further those aims; and a realistic appraisal of the organization’s existing social media presence. With a well-constructed framework in place, targeted approaches can be mapped to… Show more

"Like This, Not That" analyzes the current legal landscape with respect to corporate social media use and offers advice on best practices for businesses. It suggests that social media policy development must contemplate a variety of factors, including what the organization seeks to accomplish; which platforms will further those aims; and a realistic appraisal of the organization’s existing social media presence. With a well-constructed framework in place, targeted approaches can be mapped to different social media platforms with an understanding that flexibility is key given the rapid and often unpredictable advances in this area. Show less

This article examines the trend toward using big data for eDiscovery and investigative processes, and analyzes the use of Differential Privacy algorithmic techniques both to minimize the collection and processing of nonrelevant personal information, and to improve how relevant personal information is identified and protected.
This article was accepted as a Refereed Paper for and presented at the ICAIL 2015 Workshop on Using Machine Learning and Other Advanced Techniques to Address Legal… Show more

This article examines the trend toward using big data for eDiscovery and investigative processes, and analyzes the use of Differential Privacy algorithmic techniques both to minimize the collection and processing of nonrelevant personal information, and to improve how relevant personal information is identified and protected.
This article was accepted as a Refereed Paper for and presented at the ICAIL 2015 Workshop on Using Machine Learning and Other Advanced Techniques to Address Legal Problems in E-Discovery and Information Governance (DESI VI Workshop). Show less

In this article, James Sherer, Melinda McLellan, and Emily Fedeles provide a list of relevant questions and issues to consider when creating or revamping a corporate BYOD program, including some finer points that may enhance even mature, well-functioning BYOD practices.

The cross-use of mobile devices for personal and professional purposes, commonly referred to as “Bring Your Own Device” or “BYOD”, is a relatively recent phenomenon that has created myriad legal and practical challenges for organizations of all sizes. Implementing a BYOD program is especially complex for multinationals that have employees who regularly travel internationally, taking their devices (and corporate data) along with them when they cross borders. Melinda McLellan, James Sherer, and… Show more

The cross-use of mobile devices for personal and professional purposes, commonly referred to as “Bring Your Own Device” or “BYOD”, is a relatively recent phenomenon that has created myriad legal and practical challenges for organizations of all sizes. Implementing a BYOD program is especially complex for multinationals that have employees who regularly travel internationally, taking their devices (and corporate data) along with them when they cross borders. Melinda McLellan, James Sherer, and Emily Fedeles addressed key BYOD considerations in an article for the Richmond Journal of Law & Technology in which they examine global BYOD practices; the tension between organizational control of mobile devices and employee privacy concerns; and existing regulatory requirements and jurisprudence concerning employee expectations of privacy and employer monitoring of devices used for professional purposes. Show less

New technologies, big data, and the associated challenges of increased data privacy and security concerns may be changing the way modern Merger & Acquisition (M&A), asset purchase, divestiture, and bankruptcy due diligence is performed. In their Richmond Journal of Law & Technology (JOLT) article, James Sherer, Taylor Hoffman, and Eugenio Ortiz examine current deal practices and articulate a strategic framework that incorporates considerations of data privacy (DP), information security (IS)… Show more

New technologies, big data, and the associated challenges of increased data privacy and security concerns may be changing the way modern Merger & Acquisition (M&A), asset purchase, divestiture, and bankruptcy due diligence is performed. In their Richmond Journal of Law & Technology (JOLT) article, James Sherer, Taylor Hoffman, and Eugenio Ortiz examine current deal practices and articulate a strategic framework that incorporates considerations of data privacy (DP), information security (IS), e-Discovery, and information governance (IG) into various stages of the deal process. They provide step-by-step instructions and points to consider—and to whom the questions should be directed. Finally, they argue, when the framework is implemented appropriately, it should provide additional, efficient, and reliable insight into the true overall costs, benefits, and risks of a deal. Show less

Social media can be scary and unapproachable to executives and others who aren’t familiar with it, may fear it, but who may be required to direct its use. If you or your executives don’t “tweet” or otherwise engage, an organization's use of social media may be broad and unfocused. This is unhelpful for those organizations that want—or are required to be—actively involved in its use.

Knowledge about the actual risks and benefits of social media to an organization is the best first step… Show more

Social media can be scary and unapproachable to executives and others who aren’t familiar with it, may fear it, but who may be required to direct its use. If you or your executives don’t “tweet” or otherwise engage, an organization's use of social media may be broad and unfocused. This is unhelpful for those organizations that want—or are required to be—actively involved in its use.

Knowledge about the actual risks and benefits of social media to an organization is the best first step to asking the next set of appropriate questions. This article helps decision makers and their counsel give thoughtful consideration of social media strategy, walking those individuals through the steps of assessing which social media outlets the organization and its employees already use or are likely to use in the future, and determining which populations (both internal and external) will be engaged.

This careful consideration covers what it means for social media to be an organic phenomenon, how the “buyer” of social media services may be different than the “user,” and what organizations should consider about employee social media use, intentional and otherwise. It also covers social media threats, and gives a short-form list of executive considerations for building a strategy around careful and appropriate social media use—important in a world where it is happening regardless of an organization’s intent. Show less

BakerHostetler's James Sherer, Judy Selby, and Jacqlyn Rovine describe three ways an organization can make information governance the default—and practices that allow dark data to amass the exception—to their data management processes. The article, “Opting for a New Approach to Information Governance—Simple Principles With Outsized Effects” (October 9, 2014), explains why an organization should treat a dynamic information governance program—in which an organization implements a set of… Show more

BakerHostetler's James Sherer, Judy Selby, and Jacqlyn Rovine describe three ways an organization can make information governance the default—and practices that allow dark data to amass the exception—to their data management processes. The article, “Opting for a New Approach to Information Governance—Simple Principles With Outsized Effects” (October 9, 2014), explains why an organization should treat a dynamic information governance program—in which an organization implements a set of multi-disciplinary structures, policies, procedures, processes, and controls to manage information at an enterprise level—as the default and require employees to contend with the hassle of opting out; demonstrate how technologies are essential to an organization’s creation of ‘‘presumed consent’’ to its information governance protocols; and consider the risks associated with automated information governance solutions that do discourage employees from exercising their free will in the information governance space. Show less

BakerHostetler’s James A. Sherer and Jacqlyn Rovine consider whether, to what extent, and to what effect a court deciding a motion for spoliation sanctions will examine a challenged-party’s efforts to manage its information before litigation was reasonably anticipated, and to what extent litigators may be obligated to inform themselves about their clients’ information governance efforts vis-a`-vis the case at hand.

While case law clearly requires legal holds when litigation is reasonably… Show more

BakerHostetler’s James A. Sherer and Jacqlyn Rovine consider whether, to what extent, and to what effect a court deciding a motion for spoliation sanctions will examine a challenged-party’s efforts to manage its information before litigation was reasonably anticipated, and to what extent litigators may be obligated to inform themselves about their clients’ information governance efforts vis-a`-vis the case at hand.

While case law clearly requires legal holds when litigation is reasonably anticipated, courts have begun to reach further back into parties’ histories to examine what the parties did with the information at issue even before legal hold obligations arose.

Most courts have stopped short of censuring parties for past sins not presently before the court; nonetheless, all courts are beginning to consider these behaviors when examining difficult, present-day facts that are ripe for determination. Show less

This Virtual LegalTech presentation explores how analytic technologies and TAR tools improve efficiency and compliance, how practitioners may use predictive coding for records retention and classifying unstructured data, and how organizations and practitioners may apply best practices from using predictive coding in e-Discovery to their Information Governance initiatives.

In some respects, 2013 seemed like a conversation between Vladimir and Estragon. Some commentators likened it to a simple, unified message that finally had E-Discovery practitioners, litigators in general, and affected clients speaking the same language; others feared that a continuation of the status quo meant simply that another year had passed without addressing the significant concerns associated with the over-preservation of data and the lack of judicial consistency. The truth, as was… Show more

In some respects, 2013 seemed like a conversation between Vladimir and Estragon. Some commentators likened it to a simple, unified message that finally had E-Discovery practitioners, litigators in general, and affected clients speaking the same language; others feared that a continuation of the status quo meant simply that another year had passed without addressing the significant concerns associated with the over-preservation of data and the lack of judicial consistency. The truth, as was often the case, was somewhere in between. Show less

The increasing prominence of Information Governance as a strategic enterprise-wide concern in 2013 was a positive development largely driven by the costs, benefits, high-profile risks, and exponential growth of Big Data. Development of improved IG is well worth the effort in light of the resultant increased efficiencies and productivity and decreased costs and risks. We look for even greater appreciation for the need for strong IG throughout 2014.

With parties to litigation increasingly aware of Social Media issues, attorneys need the facts as well as an overview of how Social Media operates and how it may be used in litigation.

Increasingly, court decisions are focusing on social media, or considering it within their decisions. In this presentation, “Social Media Case Law, Use and Discovery Considerations”, James Sherer discusses the courts and parties consideration of social media, regulatory and organizational handling of social media and social media as it relates to the discovery, preservation, collection and use of information when it comes to litigation or other investigatory matters.

James Sherer spoke with the Legaco Express for Paralegals, and shared his views on the ever-changing field of information law and the opportunities paralegals may explore within this evolving field. He discussed the skills excellent paralegals employ, the role of project manager within the litigation team, and shared some time management suggestions. He also talked about attorney and paralegal responsibilities, and how to manage deadlines in an efficient and low-stress manner. Finally, he… Show more

James Sherer spoke with the Legaco Express for Paralegals, and shared his views on the ever-changing field of information law and the opportunities paralegals may explore within this evolving field. He discussed the skills excellent paralegals employ, the role of project manager within the litigation team, and shared some time management suggestions. He also talked about attorney and paralegal responsibilities, and how to manage deadlines in an efficient and low-stress manner. Finally, he reviewed some emerging e-discovery/information law trends, and future paralegal opportunities within the field. Show less

James Sherer, a partner at Redgrave LLP, was asked by Bloomberg Law to address some questions surrounding Information Law, a relatively new and dynamic field that incorporates many diverse practice areas, including litigation, privacy, data security, technology, and communications. Bloomberg asked James a number of questions about this ever-changing field, including queries about his own career path and the opportunities both new and experienced lawyers may explore within the evolving field of… Show more

James Sherer, a partner at Redgrave LLP, was asked by Bloomberg Law to address some questions surrounding Information Law, a relatively new and dynamic field that incorporates many diverse practice areas, including litigation, privacy, data security, technology, and communications. Bloomberg asked James a number of questions about this ever-changing field, including queries about his own career path and the opportunities both new and experienced lawyers may explore within the evolving field of Information Law.

The article discussed the following: experiences that lead to a focus on information law and e-discovery; what about the field of Information Law is exciting and motivating; the typical activities of an Information Lawyer; the knowledge and skills necessary to serve clients; alternate careers for law professionals interested in records management and e-discovery; the greatest opportunities in Information Law within the next five years; and asked for advice for law students or practicing attorneys interested in specializing in Information Law. Show less

Instead of reacting to litigation, an organization confident in its discovery practices can take a more aggressive posture in discovery—both defensively and affirmatively. Sometimes, the best defense is a good offense, and an organization is well-positioned to push forward on discovery issues once secure that its own execution is solid.

This article outlines the use of an affirmative strategy for organizations to take control of the case agenda, in terms of disclosures, transparency, and… Show more

Instead of reacting to litigation, an organization confident in its discovery practices can take a more aggressive posture in discovery—both defensively and affirmatively. Sometimes, the best defense is a good offense, and an organization is well-positioned to push forward on discovery issues once secure that its own execution is solid.

This article outlines the use of an affirmative strategy for organizations to take control of the case agenda, in terms of disclosures, transparency, and cooperation. It also discusses the preparation necessary to ask appropriate, probing discovery questions of your opponents. Finally, it outlines the work involved in seizing and holding the high ground of common sense, highlighting an approach involving a coordinated effort between in-house case teams and the organization’s outside counsel that, while taking a little more strategic investment at the onset, has the potential to create a significant reward: keeping the case on track for a resolution on the merits without any discovery-related detours. Show less

On November 4, 2010, the European Commission released a proposal for "a comprehensive approach on personal data protection in the European Union" (the "Proposal") which would modify current Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 ("Directive 95/46"). The Commission’s Proposal sought to modernize the EU legal system for the protection of personal data, and carried with it a mandate to present legislative proposals in 2011. The Proposal was shared with… Show more

On November 4, 2010, the European Commission released a proposal for "a comprehensive approach on personal data protection in the European Union" (the "Proposal") which would modify current Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 ("Directive 95/46"). The Commission’s Proposal sought to modernize the EU legal system for the protection of personal data, and carried with it a mandate to present legislative proposals in 2011. The Proposal was shared with interested parties and debated throughout the first-half of 2011.The language of the Proposal, as well as the outcomes of those subsequent debates, highlighted the EU’s concerns about the current practice of data privacy in a variety of arenas, including international business.

While the most direct effects of the Proposal would fall on the operation of the European Union’s Member States, some of the Proposal’s language and subsequent debate necessarily impacts multinational corporations, including those based in the United States. The most significant areas touched upon include: Member State Autonomy in the Evaluation of Safe Data Practices; Sensitive Data stored in Cloud Computing Systems; Information shared on U.S.-based Social Networks; and the Philosophy of EU Privacy and European Personal Data. This article explores the historical (and current) operation of Directive 95/46, and examines the impact that this new Proposal might have on U.S. multinational corporations, both from the Proposal’s written language and the political discussions which surround it. Show less

A spate of recent – and renewed – interest in data privacy by the U.S. Government should give those organizations that collect sensitive and personally-identifiable information from individual consumers reason to pause. And while two proposed Senate and House Bills are still in committee, their combined import is clear: the U.S. Government is in the process of stepping-up its regulation of U.S. organizations’ use of personal data. So-called opt-in agreements and End User License Agreements… Show more

A spate of recent – and renewed – interest in data privacy by the U.S. Government should give those organizations that collect sensitive and personally-identifiable information from individual consumers reason to pause. And while two proposed Senate and House Bills are still in committee, their combined import is clear: the U.S. Government is in the process of stepping-up its regulation of U.S. organizations’ use of personal data. So-called opt-in agreements and End User License Agreements (“EULAs”) will no longer suffice; U.S. consumer data privacy has attracted new government interest, and organizations who fail to take pending regulations seriously could face severe consequences and civil penalties. Show less

In recent years, more corporate resources and data storage have moved to "cloud computing." While determining the location of the cloud computing services and data was initially thought to be difficult, if not impossible, conventional wisdom has changed expectations, and industry and government experts now expect a much clearer picture of where their information resides, and where it has traveled. These expectations modify attorneys’ responsibilities for tracking this information, understanding… Show more

In recent years, more corporate resources and data storage have moved to "cloud computing." While determining the location of the cloud computing services and data was initially thought to be difficult, if not impossible, conventional wisdom has changed expectations, and industry and government experts now expect a much clearer picture of where their information resides, and where it has traveled. These expectations modify attorneys’ responsibilities for tracking this information, understanding cross-border implications, and can impact potential discovery responses. In short, the globalization of data services brings into play the real-life consequences of data crossing borders and potentially being subject to the laws of each affected country. Show less

Organizations facing the prospect of a merger investigation — as well as those organizations’ attorneys — should understand and consider alternatives to traditional document-by-document review.