CAPA

Deep learning takes

over the world

The intersection of A

Automation & AI

22

How Good Is It . . . Re

■ Search examples:

● For file materials - iManage v. Google Docs
● For discovery materials - Relativity v. Disco

■ Search visualization - 27 Steps v. 2 St

eally?

s
o

teps

How Good Is It . . . Re

■ Search term analysis - 53 Steps v. 4 S

eally?

Steps

Ethical Con

nsiderations

Can Lawyers Even U

Ethical obligations are rooted in requirem
following ABA Model Rules:
■ MR 1.1 — attorney competency
■ MR 1.6 — confidentiality of information
■ MR 1.15 — safeguard client property
■ MR 5.3 — ensure compliance by nonla

Use Cloud Products?

ments under state versions similar to the
n
awyers

26

Attorney Competenc

MR 1.1 — A lawyer shall provide competen
representation requires the legal knowled
reasonably necessary for the representatio

Comment 8 to MR 1.1 — to maintain the re
should keep abreast of changes in the law
and risks association with relevant techn

cy

nt representation to a client. Competent
dge, skill, thoroughness, and preparation
on.
equisite knowledge and skill, a lawyer
w and its practice, including the benefits
nology.

27

Attorney Competenc

State Bar of California Formal Opinion No

An attorney’s obligations under the ethical
technologies develop and become integra
competence related to litigation generally
issues relating to e-discovery, including th
information (“ESI”).

cy

o. 2015-193
l duty of competence evolve as new
ated with the practice of law. Attorney
requires … a basic understanding of …
he discovery of electronically stored

Attorney Competenc

State Bar of California Formal Opinion No
Three options if you do not have e-Discov
1. Acquire sufficient learning and skill (i.e
2. Associate with or consult consultants
3. Decline the client representation.

cy

o. 2015-193
very competence:
e. become competent);

or competent counsel; or

Attorney Competenc

State Bar of California Formal Opinion No

■ Initially asses e-discovery needs and issues, if an
■ Implement/cause to implement appropriate ESI p
■ Analyze and understand a client’s ESI systems a
■ Advise client on available options for collection a
■ Identify custodians of potentially relevant ESI
■ Engage in competent meet and confer with oppo
■ Perform data searches
■ Collect responsive ESI in a manner that preserve
■ Produce responsive non-privileged ESI in a reco

cy

o. 2015-193

ny
preservation procedures
and storage
and preservation of ESI

osing counsel re e-Discovery plan

e the integrity of that ESI
ognized and appropriate manner

Preserve Confidentia

MR 1.6(a) — A lawyer shall not reveal infor
client unless the client gives informed con
authorized in order to carry out the repres
applies].

MR 1.6(c) — A lawyer shall make reasonab
unauthorized disclosure of, or unauthorize
representation of a client.

Comment 18 to MR 1.6 — Lists five factors
exercised reasonable efforts to prevent ina
access

ality

rmation relating to the representation of a
nsent, the disclosure is impliedly
sentation, or [paragragh (b) exception

ble efforts to prevent the inadvertent or
ed access to, information relating to the

s to consider whether the lawyer
advertent or unauthorized disclosure or

31

Safeguard Client Pro

MR 1.15(a) — A lawyer shall hold property
lawyer’s possession in connection with a r
own property . . . [P]roperty shall be identif
safeguarded.

Comment 1 to MR 1.15 — Lawyer should h
required of a professional fiduciary.

operty (other than client funds)

of clients or third persons that is in a
representation separate from the lawyer’s
fied as such and appropriately
hold property of others with the care

32

Responsibility over Nonl

MR 5.3 — With respect to a nonlawyer em
a lawyer:

■ (a) A partner . . . shall make reasonabl
effect measures giving reasonable as
compatible with the professional oblig

■ (b) A lawyer having direct supervisory
reasonable efforts to ensure that the p
professional obligations of the lawyer

■ Comment 3 to MR 5.3 — Provides exa
rendering legal services, and lists four
nonlawyer conduct meets lawyer’s eth

lawyer Assistance

mployed or retained by or associated with

le efforts to ensure that the firm has in
ssurance that the person’s conduct is
gations of the lawyer.

y authority over the nonlawyer shall make
person's conduct is compatible with the
r

amples of nonlawyers used to assist
r factors to consider for ensuring
hical obligations.

33

State Ethics Opinion

Can law firms use Cloud produ

● Most states have not addressed this q
Cal. Formal Op. No. 2010-179, http://et

● See also Cal. Formal Op. No. 2012-184
● Nineteen other states have also appro

MA, NH, NJ, NY, NV, NC, OH, OR, PA,
● Summary of all state opinions at:

http://www.americanbar.org/groups/d
sources/resources/charts_fyis/cloud-e
● In absence of relevant CA authority or
Cal. Formal Op. No. 2010-179, n. 5.

ns on the Cloud

ucts?

question, but California has.
thics.calbar.ca.gov
4, http://ethics.calbar.ca.gov/
oved use of SaaS: AL, AZ, CT, FL, IA, ME,
, VT, VA, WA, WI

departments_offices/legal_technology_re
ethics-chart.html
r public policy, look to ABA Model Rules.

34

Protecting C

Client Data

What Ethics Opinion

Security — Protection Against

■ Loading
■ Hosting
■ Login
■ Data transfer for review
■ Production

Confidentiality — Protection Ag

■ Encryption
■ Limited access to the data
■ Confidentiality agreement enforced

ns Require

Loss of Client Data

gainst Disclosure of Client Data

36

What Ethics Opinion

Easy takedown

■ Process to close the database
■ Process to get the data (with work pro
■ No hostage data

Data Backup

■ Process for redundancy of the databa
■ Process to restore data loss
■ Continuity of technology

ns Require

oduct) out of the database
ase

37

Cloud Risks

Downtime

■ Data isn’t available when you need it
■ Data isn’t available where you need it
■ Limited number of users

Data theft

■ External hackers
■ Internal thieves

t

38

Cloud Risks

Data Loss

■ Ediscovery company goes out of busi
■ Hosting company goes out of busines
■ Hardware malfunction
■ Software malfunction

Lack of Control

■ Lose control over updates to software

● Although updates usually provide better se

■ Lose control over access to database

● Through failure to pay or SaaS provider do

iness
ss

e

ecurity

e

owntime

39

Cloud Benefits

Ease of use

■ No hardware to buy or maintain
■ Less real estate requirements
■ No software to install and update
■ Easy to use
■ Easy to scale
■ Easy to upgrade

40

Cloud Benefits

Easy data access

■ Access anywhere you have internet a

● Trial
● Hearings
● Depositions

■ Access from any hardware

● Tablet
● Smart phone

Lower cost

■ Typically lower and often substantially
■ Less staff requirements
■ Pass through costs

access
y lower

41

Hypothetical Case o

of Cloud v. On-Prem

The TCO Story

Assumptions

■ Hypothetical Midwestern based Mid tier Amlaw 200 firm (300-400 l
■ 200 cases per year
■ Processes 350gb/mo in total data with 40gb as average case size (8

Electronic Discovery Reference Model (EDRM) Costs

■ Processing
■ Hosting
■ User fees
■ Productions

Infrastructure Costs

■ Hardware
■ Software

Operating Costs

■ Personnel
■ Training
■ Office space

lawyers)
8tb per year total)

s

43

TCO Calculations —

EDRM Costs

S

Data and Access Processing Unit Unit cost
GB/mth $100
Charges Hosting GB/mth $15
GB $-
Culling Data + User $-
User/mth $-
User Fees set up fee Free
mm pages/yr Free
External Access Charges

Production Productions

TIFFing markup

Total Per Case Costs

Pass through to clients

Total Cost/Profit to Firm

* No user fees unless firm exceeds maximum purchased seats/month, and then is $150/user/month

AmLaw 200

SaaS Solution Installed ediscovery Solution
Amt Recapture
350 0% 1 Year Unit cost Amt Recapture 1 Year
350 0% $420,000
350 0% $200 350 100% $840,000
N/A 0% $63,000
N/A 0% $- $10 350 100% $42,000
N/A 0% $-
N/A 0% $- $- N/A N/A $-
$-
$- $- N/A* 0% $-

$483,000 $115 40 100% $55,200
$483,000
$- N/A 100% $-
$-
$0.01 8 100% $80,000

$1,017,200

$1,017,200

$-

44

TCO Calculations —

Infrastructure Costs

S

Hardware Private Cloud Data Center Unit Unit cost
Software charges monthly N/A
Processing software
Review software yearly N/A
Maintenance/yr yearly N/A
Total Infrastructure Costs 15%/yr N/A

AmLaw 200

SaaS Solution Installed ediscovery Solution
Amt Recapture
1 Year Unit cost Amt Recapture 1 Year
$- 0% $-
$60,000.00 N/A 0% $720,000
$- 0%
$- 0% $- $2,500.00 1 0% $2,500
$- 0% $- $275,000.00 1 0% $275,000
$- $41,250.00 N/A 0% $41,250
$-
$1,038,750

45