29 minute read
PULSE
RICHARD TORRENZANO THE TORRENZANO GROUP
Advertisement
Has any company in living memory faced as many high-profile controversies and setbacks as Facebook? The company confronted hot-button issues – from the Cambridge Analytica scandal, to data breaches, to antitrust actions – with a tone deafness unique among major corporations. And yet, there are signs that Facebook is beginning to get smart. Rather than remain in the crossfire of a deeply polarized country, CEO Mark Zuckerberg is positioning Facebook to serve as the neutral curator of the national dialogue. He is leading an intense, internal discussion and debate among company leaders to seek a safe path between competing demands of two parties on politiRichard Torrenzano speaks on the evolution of the role of general counsel, especially as it pertains to the upkeep and oversight of a company’s reputation navigating a modern day environment.
cal advertising, which may well turn out to be a smart strategy of enduring short-term heat for long-term insulation. The company is also beginning to learn to set the agenda. When Zuckerberg and his wife, Priscilla Chan, recently appeared on the CBS Morning News, they talked casually with anchor Gayle King across a kitchen counter, presenting an appealing, sympathetic image. No doubt, smart image consultants are behind this turnaround. But I would not be surprised if part of Facebook’s new approach in style and substance is the handiwork of someone who came on board in April – general counsel Jennifer Newstead. If so, this would be in keeping with a growing trend in corporate America – the rise of the general counsel in reputational leadership. A general counsel is arguably the best positioned member of the C-Suite to coordinate actions across disciplines for crisis response. While not every company can call on the former top counsel at the State Department, companies are turning to general counsel to help manage complex
interplay between public perception – stimulated by coverage and commentary – and the law. General counsel have always had a special “superpower” – as members of the bar, they can try to shield communications about a legal issue as privileged. However, protection of privilege for in-house counsel has become complicated and been steadily eroding. They have long had a duty to educate employees and outside advisors on how and when to claim privilege. They also have added fiduciary duties as members of the bar. Being on the frontline with authorities and regulators, they know how to avoid traps that could jeopardize the company as well as their own licenses. For years, it was a given that general counsel were siloed in this legal space. If the role of communications advisors was to counsel outspokenness, the role of the general counsel was to urge CEOs to play every card close to the vest. Newstead is part of a new generation of leaders that understands that a company can fight negative coverage and public sentiment in a way that reduces, rather than increases liability. As these leaders have emerged, the offices of general counsel have become integral to crisis response. That deep interaction between media, social sentiment online and actions of politicians and regulators call for counsel with a full range of political and communication tools. A general counsel today must be able to read and understand the Code of Federal Regulations, as well as policymakers, media and the ultimate jury, the public – which are not only customers – but in some cases shareholders.
Another reason general counsel is playing a more central role in corporate leadership is because that office has more flexible resources to respond to crises than do peers in marketing and communications. Budgeting for communications and marketing is minutely planned, and any deviation will require sacrificing something already on the books. A budget of a general counsel is built with leeway for the unexpected. General counsel clout has long been interdepartmental and companywide. General counsel can issue mandates across departments with a gravitas that a chief technology, marketing, sales or communications officer cannot. And, a general counsel is positioned to manage day-today details of a crisis in a way CEOs should not. This independence also leaves general counsel better positioned to balance competing objectives. Like the CEO and CFO, general counsel
Richard Torrenzano is chief executive of The Torrenzano Group. For almost a decade he was a member of the New York Stock Exchange’s Management and Executive committees. He has counseled chief executives and boards of corporations in the United States, Europe, Asia and Latin America, as well as several heads of state.
excel at the difficult task of weighing a company’s needs. In these instances, the general counsel can serve as excellent mediator to ensure the entire company is pulling together. Many also appreciate that the best time to prepare for a crisis is before one happens. The general counsel often takes the lead by putting together an interdisciplinary team capable of understanding and responding to a wide array of potential threats to the company. Counsel are often called on to make sure everyone, from the designated spokesperson to customer-facing personnel, understand tradeoffs between reputation and legal jeopardy so the team can move swiftly but carefully. To be most effective, general counsel must learn how to prepare for a crisis with a brutally honest evaluation of a company’s reputational profile. In such an evaluation, it is vital to be able to call upon outside consultants for social and
traditional media expertise to analyze and discern sentiment of various publics about a company or its products. Such advisors bring related aspects of effective communications, knowing when to abandon legalese in favor of “human-speak.” It took an embarrassed United Airlines more than several tries when it addressed the forced removal of a passenger in 2017 to use empathetic language most people could understand and relate to. The United debacle should be a searing lesson to all business leaders to speak and write in plain English, not in corporate acronyms or legalese. The rise of the general counsel within the leadership of a company reflects growing complexity and interplay between reputation and legal action. As this complexity increases, we can expect to see the general counsel play a more important leadership role in corporate strategy, risk, as well as reputational protection and response.
McGuireWoods and Bank of America Partner for Progress On Diversity & Inclusion
McGuireWoods and Bank of America joined forces in an aweinspiring setting Feb. 25 to elevate the discussion of diversity and inclusion in the legal profession. The event, “Partnering for Progress in Diversity & Inclusion,” drew more than 200 attorneys from firms, corporations and government to the Smithsonian Institution National Museum of African American History & Culture in Washington, D.C.
McGuireWoods Chairman Jonathan Harmon led a discussion of the challenges and opportunities facing companies and law firms and their shared need to make meaningful progress building and nurturing diverse and inclusive teams. Joining Harmon were panelists Amy B. Littman, Bank of America’s deputy general counsel and managing director; Mark W. Johnson, executive vice president and chief legal and governance officer of Kimball
International; Robert J. Grey Jr., president of the Leadership Council on Legal Diversity; and Wade J. Henderson, former president and CEO of the Leadership Conference on Civil and Human Rights. Harmon acknowledged D&I progress “has been stubbornly slow,” but
— JONATHAN HARMON
added: “When I look at this wonderful panel and the many leaders in this space who are in the room tonight, it gives me great optimism.”
Littman said Bank of America conducts extensive analysis to ensure its outside law firms assign diverse legal
teams to its matters, with women and lawyers of color playing substantive roles. When the bank evaluates law firms, “we want to know what you achieved that year, what you plan to achieve and, most importantly, we ask what we can do to work with you and help the effort.” Johnson, a former McGuireWoods litigator, encouraged creativity: “We have the power to shape trajectories, to look into what’s coming up in the pipeline and to work with law firms to make sure the right programs are in place. I love the fact that companies are taking different approaches to this issue because that’s
what we should be doing. There’s no one-size-fitsall solution.” Grey called on law firms and corporations “to be intentionally bold about the next step we take. This is the type of conversation and the type of engagement we have to have.” Henderson said McGuireWoods’ collaboration with Bank of America for the “Partnering for Progress” event was groundbreaking. “I really want to commend both Bank of America and McGuireWoods for coming together to sponsor this event. I hope other banks and law firms can be encouraged to try to do what we’re doing tonight.”
Does FAA Prevent States from Barring Mandatory Arbitration?
TRISTON "CHASE" O'SAVIO MCNEES WALLACE & MURICK
Recently enacted state laws that prevent employers from requiring mandatory arbitration for claims of sexual harassment by employees have been challenged as unconstitutional. I n response to the #MeToo movement, several states have enacted laws that prohibit employers from requiring prospective employees to arbitrate sexual harassment claims, asserting that mandatory arbitration effectively forces employees to give up their right to a jury trial. California, Maryland, New Jersey, New York, Vermont and Washington are among the states that have banned mandatory arbitration clauses in employment contracts for sexual harassment claims, despite the U.S. Supreme Court’s confirmation of the enforceability of arbitration agreements under federal law. Critics of mandatory arbitration agreements
argue that they discourage employees from pursuing claims of sexual harassment and conceal alleged employer misconduct from the public. Supporters of mandatory arbitration agreements, on the other hand, assert that they protect parties from wasting time, money and resources in class actions. Proponents of mandatory arbitration agreements have successfully argued that the Federal Arbitration Act (FAA) preempts states from enacting laws that ban arbitration agreements. Courts continue to grapple with this conflict. The following is a compilation of relevant case law and an overview of the pertinent arguments regarding mandatory arbitration prohibitions throughout the country.
Conflict Between Mandatory Arbitration Prohibitions and the FAA The Supreme Court recently affirmed the enforceability of arbitration agreements under federal law – and in its decisions, the Court acknowledged the value of using arbitration agreements as a deterrent to class action litigation.1 The Court has concluded that the FAA preempts state laws that “stand as an obstacle to the accomplishment of the FAA’s objectives,” while acknowledging that the FAA preserves traditional state law defenses to arbitration such as duress, unconscionability or fraud.2 Despite the Supreme Court’s position on this issue, many states have enacted statutes that preclude employers from requiring current employees and applicants to agree to arbitrate future claims of sexual harassment.
New York’s Attempt to Ban Arbitration In Latif v. Morgan Stanley & Co. LLC, the Southern District of New York had to decide whether Article 75 of New York’s Civil Practice Law and Rules (CPLR 7515) conflicted with the goals and objectives of the FAA, in violation of the Supremacy Clause of the United States Constitution.3 New York enacted this statute in an attempt to address sexual harassment in the workplace by prohibiting employers from requiring employees to arbitrate sexual harassment claims and by affording accusers the option of a public trial. Shortly after CPLR 7515 took effect, a former employee filed suit in federal court alleging claims of sexual harassment against his former employer. The employer moved to compel arbitration. The former employee argued that CPLR 7515 prevented the defendant from compelling arbitration.4 The court ultimately granted the employer’s motion to compel. In its decision, the court focused on the plain language of the FAA, which states that a written arbitration provision “shall be valid, irrevocable, and enforceable, save upon such grounds as exist
Triston “Chase” O’Savio is an associate with McNees Wallace & Nurick in the firm’s Labor and Employment practice group. He previously served as a federal judicial law clerk to the Honorable Judge James M. Munley in the Middle District of Pennsylvania, and he received his J.D. from Penn State Dickinson Law.
at law or in equity for the revocation of any contract.”5 In other words, an arbitration agreement is enforceable unless the plaintiff can prove a defense based on fraud, duress or unconscionability.6 Conversely, CPLR 7515 created an outright prohibition against the formation or enforcement of arbitration agreements in cases involving sexual harassment, without the need to show fraud, duress or unconscionability.7 As a result, the court held that CPLR 7515’s prohibition against arbitration agreements was preempted by the FAA and granted the employer’s motion to compel arbitration.
California’s Attempt to Ban Arbitration California also recently enacted a similar statute, AB 51, which precludes employers from requiring any applicant or employee “to waive any right, forum, or procedure” for a violation of the Fair
The Supreme Court affirmed the enforceability of arbitration agreements under federal law – and acknowledged the value of using arbitration as a deterrent to class action litigation.
Employment and Housing Act or the Labor Code as a condition of their employment, continued employment, or the receipt of any employment-related benefit.8 Employers who violate AB 51 could be subject to misdemeanor criminal liability.9 On December 6, 2019, the U.S. Chamber of Commerce challenged AB 51 in the U.S. District Court for the Eastern District of California.10 The challenge stems from the theory that AB 51 unconstitutionally violates the Supremacy Clause of the United States Constitution because it conflicts with the FAA. The suit seeks not only a declaration that the FAA preempts AB 51 but also a declaration that the FAA’s express language protects both the formation and enforcement of arbitration agreements, an argument that is consistent with prior case law.11 On January 31, 2020, the Eastern District of California issued a preliminary injunction against the state of California, enjoining the state from enforcing AB 51.12 The state of California is able to file an immediate appeal of the order granting the preliminary injunction.13 However, the injunction will likely remain in place until the court makes a permanent ruling on the preemption issue. These two decisions illustrate the uncertainty in this area of law. Although employers in New York and California may currently be able to require employees to sign arbitration agreements as a condition of employ
ment, the U.S. Court of Appeals for the Second and Ninth Circuits could decide otherwise. Ultimately, the Supreme Court may have to make a ruling on the validity of these laws, which could have widespread implications on the status of arbitration throughout the nation. Employers in Maryland, New Jersey, Vermont and Washington should also keep a watchful eye on the following laws, which are not currently being challenged in the federal courts, but could be challenged under similar theories as the above-referenced cases.
Maryland H.B. 159614 Maryland’s anti-arbitration law renders null and void all agreements or provisions in employment contracts requiring arbitration of prospective sexual harassment claims and claims of retaliation arising therefrom. Employers are prohibited from taking “adverse
action” against employees who fail or refuse to enter into agreements prohibited by the law. An “adverse action” includes discharge, suspension, demotion or discrimination in the terms, conditions or privileges of employment, or any retaliatory acts that result in a change to the terms and conditions of employment that would dissuade employees from asserting their rights under the law, or discourage others from testifying in an action involving violations of the law.
New Jersey S12115 Employers are prohibited from entering provisions in employment contracts that waive an employee’s substantive and procedural rights or remedies relating to a claim of discrimination, retaliation or harassment. The amendment further provides that “no person shall take any retaliatory action, including but not limited to failure to hire, discharge, suspension,
demotion, discrimination in the terms, conditions or privileges of employment, or other adverse action, against a person, on grounds that the person does not enter into an agreement or contract that contains a provision deemed against public policy.”
Vermont H.70716 Prohibits employers from requiring any employee or prospective employee, as a condition of employment, to sign an agreement that waives “a substantive or procedural right or remedy available to the employee with respect to a claim of sexual harassment.” Employers are required to adopt a policy against sexual harassment that includes a statement that it is unlawful to retaliate against an employee for bringing a complaint of sexual harassment or for cooperating in an investigation of sexual harassment.
Washington S.B. 599617 An employer may not require an employee, as a condition of employment, to sign a nondisclosure agreement, waiver or other document that prevents the employee from disclosing sexual harassment or sexual assault occurring in the workplace, at work-related events coordinated by or through the employer, or between employees, or between an employer and an employee, off the employment premises.
To view these footnotes, please visit ccbjournal.com.
NAVIGATING THE GRAY ZONES IN FAST-PACED CANNABIS SECTOR
Legal advice surrounding the regulatory status of cannabis- and hempbased products is a moving target, but FDA expert Howard Sklamberg keeps his clients apace.
CCBJ: Tell us a little bit about your background. What’s the primary focus of your practice?
Howard Sklamberg: I worked at the Food and Drug Administration from 2010 through 2017. I was deputy commissioner for global regulatory operations and policy from 2014 to early 2017. In that role, I was chair of the FDA’s marijuana working group, which oversaw the FDA’s policy development related to cannabis drug development, CBD [cannabidiol], recreational marijuana in the states, and coordination with other parts of the government. The field of cannabis has gotten a lot more active since the farm bill was passed in 2018, which removed hemp and certain types of hemp-based cannabidiol from the list of controlled substances. I’ve been working with firms, principally in the policy area, to help them understand the changing legal landscape and to help them work with the FDA and others to develop regulations that protect consumers and provide them with a choice. The policy area is particularly fertile right now, and it’s very much a moving target. Also, my firm has a lot of clients on the investment side. We advise them principally on the legal status of companies or products that they’re thinking of investing in, so they know what the law is and can comply.
How is the FDA responding to the growing cannabis industry?
First of all, the FDA has been in the field of cannabis for many years in its role overseeing the development of botanical drugs, such as drugs derived from cannabis. The policy development really accelerated starting around 2014, when a lot of the recreational marijuana laws went into effect, then it accelerated again at the end of 2018. The FDA has been engaged in a pretty detailed process of evaluating data on the safety of hemp and cannabis products, has been issuing warning letters for products that make fraudulent health claims, and also working with the industry to come up with a workable and clear framework for regulation. One of the challenges is that the space has grown so quickly. There are so many companies and a huge variation in the quality of the products and the types of players. There’s some evidence of companies selling products that claim to be CBD that do not contain CBD or contain too much CBD. The FDA has actually posted lab analysis on its website. There’s broad consensus that the best way to protect consumers and offer them choice is to have a clear, workable framework for regulating these products. That will address any safety concerns and hold companies to the standards for manufacturing and suppliers that we expect for products that the American public consumes.
What are the FDA’s regulatory priorities and what type of enforcement or investigative actions are you seeing?
The FDA’s enforcement priorities have been concentrated on products that make fraudulent claims. The FDA has issued a slew of warning letters over the past few years that address products that make outlandish claims to cure cancer or Alzheimer’s. It has a well-developed health fraud program that targets fraudulent products, both trying to take them off the market and educating consumers. That’s been its priority. It has also provided information to the public
about CBD. There is some disagreement between some in the industry and the FDA about safety issues, particularly what concentration levels trigger safety concerns. A lot of those details will be fleshed out with more data and the FDA’s continuing evaluation of existing data.
How are you advising clients to stay on the right side of enforcement activity?
The best advice is to follow the law. Some products are clearly illegal, some products are clearly legal, and then some are in a gray zone. Marijuana is still a federal controlled substance. The distribution of marijuana might be legal under state law in some states, but it still violates federal law. Some hemp products are legal. The FDA itself has not claimed that CBDcontaining cosmetics are illegal. We advise our clients on what the law is and to follow the law. For inves
tor clients who are looking at making an investment, particularly more of a passive investment, they often have less information about the legal status of the products. We provide assistance in telling these companies what we think is legal, what we think is not.
How are you advising investors in this area?
For investors, there are many questions. The first question involves whether the product is legal. The second is if
Howard Sklamberg is a partner with Akin Gump, specializing in advising clients on matters related to U.S. FDA regulation and policy. Sklamberg also focuses his practice on a wide range of compliance and enforcement issues. Reach him at hsklamberg@akingump.com.
they are indirectly doing business with a company that is violating federal law. If they’re providing, for example, a general service to companies violating federal law, there could be implications. Somebody might own real estate, and in one of those buildings there’s an office in the marijuana business, for example. Also, what types of regulatory requirements there are for banking and securities is a concern. Clients ask about investments in Canada, where cannabis is legal but regulated. They might ask what precautions, if any, are needed.
Do you have any predictions for the coming year and beyond?
Predictions about regulations are generally difficult. It’s even more difficult when you have presidential and congressional elections happening, but pretty much everybody – from the leaders in the industry to the FDA itself to Congress – all want that to happen. There is a strong interest in Congress to provide much more certainty on the regulatory status of hemp-based products that may contain CBD. Some bills before Congress are trying to prompt the FDA to be more timely in regulation and develop a more clear regulatory framework in the near future. I think we’re going to see Congress continue to have that interest. We’re also seeing the FDA talk about the need to have more certain regulation. It has indicated that legislation may be part of the solution as well. I personally hope that there is activity in the next couple of years because having clear regulation in this area, regulation that sets standards that protect consumers, is imperative for consumer safety, for offering choice, and for the industry.
Taking Advantage of an Emergent New Area of Evidence
Dan Regard, president and CEO of iDiscovery Solutions, discusses recent trends and innovations in the world of digital forensics and e-discovery, including the revolutionary role of contextual data in today’s legal strategies.
CCBJ: What are some forensic and technological trends or areas of focus that you expect to see in 2020, based on iDS’s recent business and the matters you’ve been working on?
Dan Regard: One of the big issues in the industry right now is trying to understand how best to apply the tools that we already have – really bringing the know-how of technology-assisted review (TAR) to bear. There’s still a lot to be improved on, in terms of data preparation, gathering and orientation, as well as maximizing the value that can be taken out of the various forms communication that exist today. We’re still learning new ways of extracting information. But the challenges are not with the technology – the challenges are actually with the sources. We’re seeing data now in an increasingly splintered sequence of channels, whether it’s Twitter or Pinterest or TikTok or whatever comes next. All of these different forms of communications can be relevant under the right set of circumstances, which causes more source challenges and platform challenges.
How are clients responding to that, in terms of their data retention and management? For example, we had a conversation recently with a large company that is trying to move all of their corporate clients into Teams, using their own version of Slack for all their internal communications. That way, they can monitor for harassment or compliance problems more efficiently, as opposed to with email. It makes discovery easier. Do you see people moving in that direction?
It’s hard to say, because we tend to be on the reactionary side of downstream developments. Clients and their employees adopt the technologies that they want, right, and we usually end up dealing with the ramifications at least six to 12 months later, because that’s when litigation arises, not when the technology is first adopted. The challenges I was referring to a moment ago are not so much with enterprise-level technologies, like the one you just mentioned. It’s with the technologies that are independently adopted by employees – the viral new communications platform du jour that employees start using before the employer is even aware it exists. These platforms pop up in a very organic fashion and can spread very quickly – like TikTok has, for instance. At the end of the day, what we find is that employees often don’t really know or care that a particular platform is supposed to be only for personal use or only for business use, so it ends up getting used for both. That can be unintentional. But we also have cases where the use of nonofficial channels is more deliberate – whether it’s collusion or antitrust violations, for example, many times that tends to happen outside of the official corporate channels, for obvious reasons.
Where do you see your company going this year and in the next several years?
We made a decision a long time ago to develop a deep bench of computer, forensic, e-discovery, TAR and overall cyber expertise, and we’re going to continue to grow that capability. We’re going
to bring in even more experts. We’ve rolled out a new methodology for enhanced project execution that actually focuses on the beginning of a project. It’s not an additional expense to our clients, but it acknowledges that there are certain things that need to be done at the beginning of a project to preserve the opportunity to testify, opportunities that you may lose if you don’t take them early in the case. We’re engaging with clients about that necessity. Sometimes, when it comes to testifying, we at iDS are more aware of that reality – that these things need to be done early – than our client law firms and law departments are. So we’re actually helping them craft strategies for how to best prepare for the eventuality that expert testimony may be necessary. We’re also expecting the company to grow geographically. We’re opening up an office in London later this year.
In fact, I’ll be there soon myself to lay some of the groundwork for it.
Let’s talk about what iDS is doing in terms of innovation, technologically or otherwise.
We just rolled out a new platform that’s specifically designed to manage structured data in litigation. There’s no other tool out there that does that. We developed it for our own expert testimony purposes, and now we’ve commercialized it for others as well. By structured data, I mean all of the metadata that is generated by technology as we go about daily our lives. Cell phones, GPS, the metadata that exists because you texted with somebody – when you did it, how many times you did it, that kind of thing. And these sources of metadata are increasing. Now it’s also the output of your Ring doorbell. The history of your Waze account. Your financial history – credit card records, ATM withdrawals. All of these different data streams can be analyzed and combined to tell a more cohesive, complete picture of the history of events in a particular case. We call this contextual data. This is a form of innovation, this data integration. These tools didn’t exist until we created them. We’ve spent six years developing them so far, and we’ve just released the latest version. Innovation can also involve looking closely at existing technologies and finding new ways to apply them to the problems of law. We think, for example, TAR is fantastic, but by itself it’s a very complex tool. So, we combine that existing technology with process and expertise. We have a methodology for consistent high-quality results using TAR, but we also know that the goals of TAR are not always the same. It depends on what your intended outcome is. Are you investigating a collection of documents? Are you reviewing documents for production? Are you reviewing them for privilege? Those are three very different actions, with three very different outcomes. Therefore, we take three very different approaches. That’s a form of innovation.
We deal with a lot of legal operations professionals, who are always trying to optimize how they insource or outsource legal work. Do you have any advice for them about evaluating subject matter experts that they might bring in? What should they be looking for?
It’s enticing to look at a subject matter expert and ask a single question: “Do they understand the subject matter?” That’s appropriate, of course, but you also need to ask a few other questions. Who’s going to make sure that they can testify in a way that’s reliable in the American court system? Who’s going to make sure that they can
communicate well to a jury or to the trier of fact? Who’s going to make sure that they handle depositions well, or that they can contribute when you’re taking a deposition from whoever’s on the other side? All of these issues are an important part of the landscape that determines whether that expert testimony is going to be successful. It’s not just their subject matter expertise. As a result, when we work with our clients, one of the things we talk about is how we can make sure that we surround that expert with a successful team. We are experts in e-discovery and computer science, but sometimes we’re hired to help other subject matter experts, whether it’s involving trade secrets, patent litigation, whatever the case may be, because we bring that expertise. I’ve spent 20-plus years supporting forensic accountants and economists. We’re the ones who retrieved the data and cleaned it up. We’re the ones who housed the data. We even did the preliminary analysis. But no one can match forensic accountants when it comes to the interpretation of the data, or for direction on what needs to be done. And in a world where the footprint of evidence is larger than ever, you often need a team. Pick those other skill sets wisely, so that they complement that expert and help them be more successful.
What do legal ops people need to know about what’s changing on the technological front? How should they be preparing themselves professionally for when adverse things happen?
As the gulf between those who know law and those who know technology becomes wider, finding the way to bridge that gap is crucial, and it becomes more of a challenge. We have great tools out there, great technologies, and as they become more sophisticated, the need to integrate them into the legal practice becomes stronger. I would encourage them to look for translators, look for connectors, look for people who can bring together a versatile team to handle a variety of issues. Also, there is that emergent new body of evidence, contextual data, that I mentioned before, and it affects the tactics, strategies and outcomes of litigation. It impacts all three legs of the litigation stool – damages, merits and
Daniel Regard is the president and CEO of iDiscovery Solutions. A programmer and an attorney by training, Mr. Regard has conducted system investigations, created data collections, and managed discovery on over a thousand matters. Prior to founding iDS, he was the national director of e-Discovery for LECG. Reach him at dregard@idiscoverysolutions.com
credibility. It’s a real powerhouse. So those are my two pieces of advice: Find someone who can help you connect to the right technological solutions. And number two, pay attention to this emergent area of evidence, contextual data, because it really is causing transformative outcomes.
You’re working on a book. What can you tell us about it, especially in terms of what it offers the legal community?
The book is about the impact of big data on litigation – that emergent technology around contextual data that I’ve been talking about. It’s called “The Last Jury Trial: Litigation in a World of Perfect Information.” Sci-fi television shows like Black Mirror aside, I wanted to think about this question: “Do we already live in a world where we are recording everything that we do,
everywhere that we go, everything we purchase, everybody we spend time with?” The answer is yes, we do. Right now, today. Perhaps it’s difficult to acquire some of that data, but it does exist. Therefore, it went from nonexistent to existent. But our experience with all previous technologies
tells us that it will become more accessible in the future. In fact, our data has already become so accessible that, as a society, we felt the need to write laws to stop people from accessing it when we don’t want them to. These privacy laws speak to the existence of
something totally new – we didn’t need them in the past, now we need them. You don’t write laws about something you can’t do, you write laws about something you shouldn’t do. In the end, this whole emerging area of contextual evidence raises a lot of new questions – about how we deal with it as a practice, what the implications are for how we litigate, what the sequence of civil procedures should be, how this evidence is different than oral testimony and other documentation. All of this is in the book.
