Lighthouse Blog

When the Federal Rules of Civil Procedure were amended in December of 2006 to include “electronically-stored information” as an information category subject to discovery, even the most visionary eDiscovery practitioners could not have anticipated what this would mean in the years to come.Although the tech-savvy among them may have anticipated the future challenge of increasing data volumes, who could have foreseen the impact of the Cloud and the exponential growth of data types and communication applications? No one in 2006 could have anticipated the explosion of third-party messaging apps (think WhatsApp, Signal, Snapchat, Telegram, WeChat, etc.) proliferated by a worldwide pandemic. Some of these applications allow users to send encrypted messages or ephemeral messages (messages that disappear after sending) and usually exist outside of native Apple or Android apps. Therefore, they raise uniquely challenging data governance and eDiscovery issues. Unfortunately, for a variety of reasons, organizations have had trouble implementing compliance policies that directly address those downstream eDiscovery and data governance implications. Mobile device policies tend to focus heavily on security considerations, with little attention given to how corporate communications can be preserved, collected, and/or produced should the need arise.Information use policies that require employees to use certain systems for work-related communications and collaboration do not always account for the realities of the business. Additional complexities include the proliferation of chat applications in the market, practical challenges collecting mobile device data (including forensic imaging in some cases), the co-mingling of personal and work data, and privacy implications.But while organizations have struggled to implement policies that address the full breadth of these challenges, eDiscovery obligations remain constant. Given the rise in the use of third-party applications for work communications (in some cases to potentially evade recordkeeping policies for more traditional tools like email), government agencies and regulators have increased scrutiny of how these systems are being used and managed. In doing so, they increasingly consider company policies that manage records and whether adequate controls are in place to ensure compliance. Both in-house and outside counsel have a responsibility to their clients to stay abreast of this increased scrutiny in order to advise them. In light of this responsibility, we are providing an overview of recent regulatory changes, as well as best practices for companies to survive within this new regulatory era. Focus on messaging apps by government agencies and regulators Until very recently, government agencies and regulators investigating companies have focused their attention on communications contained in traditional ”workplace” messaging applications, i.e., systems designed purely for business purposes. Regulated entities have recordkeeping requirements that mandate the retention of specific categories of records for a designated period of time, including communications, with penalties for record-keeping violations. Financial institutions have paid billions in SEC and Commodity Future Trading Commission penalties to settle related allegations. Private equity firms have been in the crosshairs as well. In an ironic twist, the SEC itself has been under scrutiny for similar behavior as members of the House Financial Services Committee and other House panels question whether the agency has suffered similar recordkeeping lapses, illustrating how widespread these apps are and how difficult it is to curtail their use. The 2022 Monaco Memo and subsequent sanctionsAmidst this backdrop, the Department of Justice ("DOJ") stepped up significantly with new directives and corporate compliance guidelines for personal mobile devices and third-party chat applications. In September 2022, Deputy Attorney General Lisa Monaco issued a memo to the DOJ Criminal Division to provide "best corporate practices regarding use of personal devices and third-party messaging platforms" in what has become known as the "Monaco Memo." Monaco stated, "[t]he ubiquity of personal smartphones, tablets, laptops, and other devices poses significant corporate compliance risks, particularly as to the ability of companies to monitor the use of such devices for misconduct and to recover relevant data from them during a subsequent investigation. The rise in use of third-party messaging platforms, including the use of ephemeral and encrypted messaging applications, poses a similar challenge." 2023 DOJ best practice guidelines and DOJ sanctions In February of 2023, the DOJ filed a memorandum in support of sanctions against a large technology company for alleged "intentional and repeated destruction of company chat logs" that the U.S. government sought to use in an antitrust case against the company. The DOJ filing indicated that the company set chats to delete after 24 hours. The Federal Rules of Civil Procedure required the company to suspend its standard retention upon notice of the government's legal action in 2019, which it did not do until it received notice of the 2023 motion for sanctions. In March of 2023, after those sanctions, the DOJ updated its Evaluation of Corporate Compliance Programs ("ECCP") to emphasize the importance of preserving business communications on personal devices, various communications platforms, and messaging applications, including those offering ephemeral messaging. In subsequent remarks announcing the 2023 ECCP best-practice guidelines, Assistant Attorney General Kenneth A. Polite, Jr. pointedly noted that when companies fail to produce communications for DOJ investigations, "a company's answers—or lack of answers—may very well affect the offer it receives to resolve criminal liability. So when crisis hits, let this be top of mind." The 2023 DOJ guidelines state that prosecutors will consider three factors when evaluating the adequacy of corporate policies governing the use of personal devices, communication platforms, and messaging applications: 1. Existing communication channels2. Policies governing the existing communication channels3. Whether the corporation is adequately communicating and consistently enforcing the policiesThese new DOJ guidelines significantly expand the scope of an organization's duty to preserve corporate communications. They create a new preservation duty targeted at business-wide compliance operations. Where internal legal departments may have struggled in the past to implement culture-changing mobile device policies, compliance teams may succeed in garnering the requisite executive buy-in.A path forward for organizationsAs law enforcement agencies and regulators continue to take a more rigorous stance towards messaging applications, companies will need to explore more expansive policies to comply with various obligations to retain and preserve data. But it’s a sticky problem for both sides to address, given the different capabilities of each system, incompatibility of certain tools with regulatory recordkeeping requirements, and the hard realities of today’s workplace. For some organizations, the risks of using certain third-party applications (including the inability of the organization to comply with certain regulatory requirements) simply does not outweigh the benefit to the business, and in these circumstances, companies might choose to not permit them. There may be legitimate business reasons for employees to use these apps—they are readily available, convenient, and provide certain security and data reduction benefits. However, organizations will need to weigh whether those benefits are worth the risk of possibly losing relevant data or enabling potentially nefarious behavior.Policies, procedures, and information governance—again “Guidance” and “controls” are the operative words here. For most businesses—and certainly for those in regulated industries or frequently subject to litigation—information governance and compliance functions only increase in importance as the datasphere continues to become more complex. Guidance: To reduce exposure and risk, businesses first need to consider the requirements they are subject to and clearly define their stance on the use of ephemeral data apps. It helps to have in place a solid information governance framework, with applicable written policies and procedures that reflect that stance. As with all data-related responsibilities, employees should be provided explicit guidance regarding personal devices and messaging tools during onboarding with continual reinforcement during routine training on policies and procedures that should be a part of any robust compliance program. Evidence of rigor in communicating to employees the appropriate use of these messaging platforms vis à vis data retention obligations can only be a benefit in case of an investigation or litigation. Controls: In addition, appropriate controls should be in place to monitor compliance and ensure required preservation, with effective means to handle non-compliance. If personal devices are approved for use, they should be subject to mobile device management (MDM), as well as policies and procedures that address their use to help ensure data safety and security.Realistically, whether or not a company allows the use of third-party apps doesn’t mean employees are sticking with the plan. It is the responsibility of the business to know what their employees are doing. Periodic testing and auditing of messaging applications is well-advised, and any employee misconduct in violation of company policies related to ephemeral messaging should be addressed and documented. Voluntarily self-disclosed misconduct can go a long way in mitigating potential damage and fines. Due consideration should also be given to whether there is the necessary IT infrastructure, resources, and budget to undertake surveillance of employee behavior and to respond to regulatory or legal requests for information, including proper implementation of a legal hold. If ephemeral messaging is allowed, can it be disabled in the event of potential litigation so that potentially relevant material is preserved? If not, there could be a problem.ConclusionThe datasphere is only going to become increasingly complex as more data-creation (and deletion) tools emerge. With regulatory recordkeeping and data retention mandates likely to remain in place, government agencies will continue to scrutinize third-party messaging applications. A robust information governance approach, as usual, is key. Companies with a defensible and effective electronic records retention policy that covers the legitimate use of messaging apps—with employees that are trained in related policies and procedures and how best to use them—will have the best chance of avoiding trouble and/or defending themselves against potential wrongdoing. chat-and-collaboration-data; forensicsforensicsdaniel black; jodi daniels

To keep up with the big data challenges in modern review, adopting a technology-enabled approach is critical. Modern technology like AI can help case teams defensibly cull datasets and gain unprecedented early insight into their data. But if downstream document review teams are unable to optimize technology within their workflows and review tasks, many of the early benefits gained by technology can quickly be lost.In a recent episode of Law & Candor, I was happy to discuss the ongoing evolution of document review—including the challenges of incorporating available technologies. We explored some of the most pressing eDiscovery challenges, including today’s data complexity, and how to break through the barriers that keep document review stuck in the manual, linear review model. We also discussed the value of expertise and where it may be applied to optimize review in various phases of a project. Here are my key takeaways from our conversation.Increasing data complexity challenges and entrenched manual review paradigms Today’s digital data—a wellspring of languages, emojis, videos, memes, and unique abbreviations—looks nothing like the early days of electronic information, and it is certainly a universe away from the paper world where legal teams had to plow through documents with paper cuts, redaction tape, and all. Yet, that “paper process” thinking—the manual, linear review model—still has a firm hold in the legal community and presents an unfortunate barrier to optimizing review. The evolution is telling. As digital data began to take over, the early AI adopters and the “humans need to look at everything” review camps staked their ground. Although the two are moving closer together as time goes on, the use of technology is not as highly leveraged as it could be, leaving clients to pay the high costs of siloed review when technology-enabled processes could enhance accuracy and reduce costs. There are a variety of factors that can contribute to this resistance, but it may also be simply a matter of comfort; it’s always easier to do what you already know in the face of changes that may seem too difficult or complex to contemplate. For the best result, know when and where to leverage available technologies in the review process Human beings are certainly a core component of the document review process, and they always will be, but thinking about the entire review lifecycle strategically, from collection through trial preparation, is critical when it comes to understanding where you can gain value from technology. Technology should be considered a supplement to—not a substitute for—human assessment and knowing where to use it effectively is important. When considering the overall document review process, two key questions are: Where can you get more value by using technology? And where are the potential areas of either nuanced or high-risk communications that may require a more individualized assessment? The goal, after all, isn’t to replace humans with technology, but rather to replace outmoded contract review factories with smarter alternatives that leverage the strengths of both technology and human expertise. A smaller review team, coupled with experts who can effectively apply machine learning and linguistic modeling techniques in the right place, is a much more efficient and cost-effective approach than simply using a stable of reviewers. Technology buyers need to understand what a given tech does, how it differs from other products, and what expertise should be deployed to optimize its use Ironically, the profusion of viable tech options that can applied to expedite document review may be off-putting, but this is a “many shades of gray” situation. Many products do similar things and it is important to understand what the differences are—they may be significant. Today’s tools are quite powerful and layering them alongside the TAR tools that document review teams have become more familiar with is what allows for the true optimization of the review process. These tools are not plug-and-play, however. You need to know what you’re doing. It takes specific expertise to be able to assess the needs of the matter, the nature of the data, the efficacy of the appropriate tools, and whether they’re providing the expected result. Collaboration is still the critical core component of document reviewAnd let’s not forget that document review is a collaborative process between client counsel, project managers, and the review team. Within this crucial collaboration, specific expertise at various points in the process ensures the best result, including: • Expertise in review consulting to assess the right options for both the data that’s been collected and the project goals.• Individualized experts in both the out-of-the-box TAR technology as well as any proprietary technology being used so that the tech can be fine-tuned to optimize the benefits.• A core team of expert human reviewers with the appropriate skills.Experimentation with technology can help bridge the divideWith so many products available to enhance the document review workflow, it makes sense to test potential options. Running a parallel process for a particular aspect of the review to get comfortable with a new product can be very helpful. For example, privilege review, which is an expensive part of the review process, could be a good place to test an alternate workflow. An integrated approach works bestThe bottom line is that an integrated approach, advanced technology, and human expertise, is the best solution. The technology to increase the efficiency and effectiveness of document review is out there and most of it has been shown to be low risk and high value. The cost-effectiveness of an integrated approach has been shown over and over again: In using the appropriate technology, budgets can be reduced, and savings reinvested in new matters. It is up to the client and their legal and technology teams to work together in deciding what combination of tools makes the most sense for their organization and matter types. Just make sure to call upon those with the appropriate expertise to provide guidance. For more examples of how AI and human expertise are optimizing review, check out our review solutions page. ai-and-analytics; ediscovery-reviewai-big-data, blog, managed-review, ai-and-analytics, ediscovery-reviewai-big-data; blog; managed-reviewmary newman

Generative AI. Bard. Bing AI. Large language models. Artificial intelligence continues to dominate headlines and workplace chats across every industry since OpenAI’s public release of ChatGPT in November of 2022. Nowhere was this more evident than at this year’s Legalweek event. The annual conference, which gathers thousands of attorneys, legal practitioners, and eDiscovery providers together in New York City, was dominated by discussions of ChatGPT and AI. This makes sense, of course. Attorneys must understand how major technology shifts will impact their clients or companies—especially those in eDiscovery and information governance who deal with corporate data and its challenges. But there was a slight twist to the discussions about ChatGPT. In addition to the possible impacts and risks to clients who use the technology, there was just as much, if not more, focus on how it could be used to streamline eDiscovery.The idea of using a tool released to the public less than four months ago seems almost ironic in an industry with a reputation for slowly adopting technology. Indeed, a 2022 ABA survey showed that as few as 19.2% of lawyers use predictive coding technology (i.e., technology assisted review or TAR) for document review, up from just 12% in 2018. Even surveys dominated by eDiscovery software providers showed TAR was being used on less than 30% of matters in 2022. Given that the technology behind traditional TAR tools has existed since the 1970s and the use of TAR has been widely accepted (and even encouraged) by court systems around the world for over a decade, these statistics are strikingly low.So, what is driving this recent enthusiasm in the industry around AI? The accessibility and generative results of ChatGPT is certainly a factor. After all, even a child can quickly learn how to use ChatGPT to generate new content from a simple query. But the recent excitement in eDiscovery also seems to be driven by the significant challenges attorneys are encountering:Macroeconomic volatility and unpredictability have been a near constant stressor for both corporate legal departments and law firms. Legal budgets are shrinking, and layoffs have plagued almost every industry, leaving legal teams to do the same volume of work with fewer resources.Corporate legal teams are being pressured to evolve from a cost center to one that generates revenue and savings, while attorneys at law firms are expected to add value and expertise to all sectors of a company’s business, beyond the litigation and legal sectors they’ve traditionally operated in. And all attorneys are facing increasing demand to become experts in the risks and challenges of the ever-evolving list of new technology used by their clients and companies.New technology is generating unprecedented volumes of corporate data in new formats, while eDiscovery teams are still grappling with better ways to collect, review, and produce older data formats (modern attachments, collaboration data, text messages, etc.) In short, even the most technology-shy attorneys may be finding themselves at a technology “tipping point,” realizing that it is impossible to overcome some of these challenges without leveraging AI and other forms of advanced technology. But while the challenges may seem grim, there is an inherent hopefulness in this moment. The legal industry’s tendency to adopt AI technology more slowly than other sectors means there’s ample opportunity for growth. Some forward-thinking legal teams, with the help of eDiscovery providers, have already been leveraging advanced AI technology to substantially increase the efficiency and accuracy of eDiscovery workflows. This includes tools that utilize the technology behind ChatGPT, including large language models and natural language processing (NLP). And unlike ChatGPT, where privacy concerns have already been flagged regarding its use, existing AI solutions for eDiscovery were developed specifically to meet the stricter requirements of the legal industry—with some already overcoming tough scrutiny from regulators, opposing counsel, and courts. In other words, the big eDiscovery question of 2023 may not be, “Can ChatGPT revolutionize eDiscovery in the future?” but rather, “What can advanced AI and analytic tools do for eDiscovery practitioners right now?” While the former is up for debate, there are definitive answers to the latter threaded throughout many of the other major industry discussions happening now. Some of those discussions include:If you want to go far, go together Today’s larger and more complicated data volumes often make the traditional eDiscovery model feel like the proverbial round hole that the square (data) peg was not designed to fit into. And it’s becoming increasingly expensive for legal teams to try to do so. To operate in this new era, it’s essential to work with partners who can help you meet your data needs and align with your goals. A good example is when an in-house legal team partners with a technology-forward law firm and eDiscovery provider to build a more streamlined and modern eDiscovery program. This kind of partnership provides the resources, expertise, and technology needed to take a more holistic approach to eDiscovery—breaking away from the traditional model of starting each new matter from scratch. These teams can work together to create and deploy tools and expertise that reduce costs and improve review outcomes across all matters. For example, customized AI classifiers built with data and work product from the company’s past matters, cross-matter analytics that identify review and data trends, and tailored review workflows to increase efficiency and accuracy for specific use cases. This partnership approach is a microcosm of how different organizations and teams can work together to overcome common industry challenges. Technology that meets us where we areDespite all the chatter around ChatGPT, there is currently no “easy AI button” to automate the document review process. However, modern eDiscovery technology (including advanced AI) can be integrated into almost every stage of the document review process in different ways, depending on a case team’s goals. This technology-integrated approach to eDiscovery workflows can help case teams achieve unprecedented efficiency and review accuracy, mitigate risks of inadvertently producing sensitive documents, minimize review redundancy across matters, and quickly pull out key themes, timelines, and documents hidden within large data volumes. Technology-forward law firms and managed review partners can help case teams integrate advanced technology and specialized expertise to achieve these goals in a defensible way that works with each company’s existing data and workflows. The only constant is change The days of a static, rarely updated information governance program are gone. The nature of cloud data, the speed of technology evolution and adoption, and the increasingly complex patchwork of data privacy and security regulations mean that legal and compliance teams need to be nimble and ready for the next new data challenge. New generative AI tools like ChatGPT may only add to this complexity. While this type of technology may be largely off limits in the near future for eDiscovery providers and law firms due to client confidentiality, data privacy, and AI transparency issues, companies in other industries have already begun using it. Legal and compliance teams will need to ensure that any new data created by generative AI tools follow applicable data retention guidelines and regulations and begin to think through how this new data will impact eDiscovery workflows.The furor and excitement over the potential use cases for ChatGPT in eDiscovery are a hopeful sign that more legal practitioners are realizing the potential of AI and advanced analytic technology. This change will help push the industry forward, as more in-house teams, outside counsel, and eDiscovery providers partner together to overcome some of the industry’s toughest data challenges with advanced technology.For other stories on practical applications of AI and analytics in eDiscovery, check out more Lighthouse content. lighting-the-way-for-review; ai-and-analytics; lighting-the-path-to-better-reviewai-big-data, blog, ai-and-analytics,ai-big-data; blogsarah moran

Individual stories can lead to collective action, innovation, and change. Throughout our celebration of Women’s History Month, this is a critical lesson that has emerged in our conversations with leading women in the eDiscovery, legal, and technology spaces. In the brand-new season of Law & Candor, we’re thrilled to share six more stories of women bringing innovation, agility, and tenacity to modern data and legal challenges. Our co-hosts Paige Hunt and Bill Mariano explore a range of key issues with our guests, including:Episode 1—Optimizing Review with Your Legal Team, AI, and Tech-Forward Mindset Episode 2—Everything Dynamic Everywhere: Managing a More Collaborative Microsoft 365Episode 3— Why Your Data is Key to Reducing Risk and Increasing Efficiency During Investigations and LitigationEpisode 4— An Expert View on the Critical Data Privacy Issues for 2023 and Beyond Episode 5— Prioritizing Information Governance and Risk Strategy for a Dynamic Economic ClimateEpisode 6— The Chat Effect: Improving eDiscovery Workflows for Modern Collaboration Data To keep up with news and updates on the podcast, follow Lighthouse on LinkedIn and Twitter. And check out previous episodes of Law & Candor at https://www.lighthouseglobal.com/law-and-candor-podcast.For questions regarding this podcast and its content, please reach out to us at info@lighthouseglobal.com.diversity-equity-and-inclusionblog, podcast, dei, diversity-equity-and-inclusion,blog; podcast; deimitch montoya

Building on our conversation from part one, we explore some practical advice and steps for achieving equity, including the role of allies, and how this work will benefit us in the future.True equity in the workplace starts from the topWhile grassroot employee efforts can be impactful, they will never be enough if diversity is not exemplified and valued at the highest levels of an organization. This means that it is not enough for leaders to verbalize a commitment to diversity and inclusion campaigns. Leaders must also back up that commitment with action: In times of economic volatility, companies can and should continue to devote a portion of their budget to equity and inclusion initiatives, and make sure these initiatives are supported by senior leadership. — Brooke OppenheimerWhen you have leadership at the top that truly values diversity and equity in all its forms— gender diversity, racial diversity, sexual orientation diversity, etc.— that priority will flow down from the leadership to the rest of company. It is incumbent on organizations to ensure their leaders are prioritizing diversity, because the rest of the organization will follow what the leadership is exemplifying. — Ashley BaynhamWhen you have strong leadership serving in the capacity of championing equity in the workplace on a day-to-day basis, it not only sets a tone and expectation across the organization that diversity is top of mind, but it becomes seamless to follow in their footsteps. —Jeannie E. FarrenThis means that, in order to become truly equitable, organizations have a duty to break up inequitable leadership structures. Historically in corporate America, we have seen an abundance of white, hetero, male leaders in positions of power. It’s hard to think of achieving true equity within the legal industry if that power structure at the top is not diverse. To make that change, it becomes incumbent on those leaders to stand up and say, “I want to lead an organization that doesn’t just resemble me. I want to lead an organization that more strongly resembles this country as whole.” —Michelle Six Lack of gender diversity in certain roles perpetuates existing biases, leading to inadequate representation in leadership positions. —Brooke OppenheimerThis duty also applies to individual leaders. Leaders have a responsibility to not only leave the door open for women and other underrepresented groups, but also to proactively help diversify inequitable power structures:If you are fortunate enough to be trusted to be in a leadership role within your organization, you have an ongoing responsibility to continuously assess how you are applying fairness across the team on a day-to-day basis. Look around your team and make sure that the “shiny” opportunities are being spread evenly across the team and that the women on your team are being provided with the chance to be in the spotlight as often as possible. — Jeannie E. FarrenThat idea leads directly to an essential point about the power of allies…Allies are integral to the fight for gender equityTrue gender equity cannot be achieved by women alone. Equity can only be achieved when women and allies come together to support individual women and push for progress, together. If you are surrounded by people in your (personal and professional) life who share a common goal as important as equity for all, you have already accomplished one of the most difficult hurdles. — Jeannie E. FarrenBecause of longstanding historical and systemic gender inequities, our allies are often in a better position within an organization to effect real change. It is therefore imperative that allies remain vigilant, proactive, and unafraid to call out gender biases and inequities when they occur. As an ally, stay cognizant of some of the ways that unconscious or conscious gender bias can play out in the workplace. For example, if you see someone cutting off a colleague in a meeting, speak up. It becomes very hard to constantly have to champion yourself or work to overcome those gender biases on our own. And for women, there’s always a concern that championing yourself comes off as self-promotion. That’s where a third party may be in a better position to stand up and raise their voice as ally. So, my advice for allies would be: Speak up, in the moment that your voice is needed.” — Ashley BaynhamTo help facilitate this, organizations committed to diversity and inclusion can put systems in place that make it easier for individuals and allies to report instances of gender bias when it occurs.When we witness inequities, we may not stand up because we think that “others” have already raised the issue. But oftentimes, the bystander effect is at play—which leads to no one saying anything at all. This demonstrates the value of having established channels of communication so that people know who they can go to for help. It also shows us that we all have to be comfortable being a little uncomfortable if we want to fight for an equitable workplace for all. —M. Alexandra BillebIn this way, advocates and allies can create an environment that fosters organizational-wide accountability and responsibility in the fight for gender equity.Each of us can contribute in ways large and small to ensure that it isn’t just the person with the loudest voice or most senior title who is heard. And we should point out ways in which individuals and organizations are not living up to those principles. It is not enough to say what is important to us. We have to hold each other accountable when we fall short. — M. Alexandra Billeb Gender equity requires the creation of an inclusive culture that does not tolerate inequity and that supports, champions, and encourages women's contributions. —Brooke Oppenheimer It is critical to champion equity and inclusion more broadly in order to expand upon gender allies through standing up support groups and creating measurable data points for accountability. — Jeannie E. FarrenThis community of advocates and allies, committed to a culture of accountability, has a much better chance at rectifying some of the most challenging and persistent gender equity issues—for example wage inequity:One of things we can look for from our allies with decision making power is better wage transparency— so that we can more effectively advocate for better wage consistency. One of the biggest barriers to gender equity in the legal profession is unequal compensation. The gender-based wage gap still remains and the legal industry has more work to do in this regard. I believe that greater salary transparency across the legal industry will potentially lead to more wage equity, which is a goal we should all prioritize. — Michelle Six Conclusion While there are still significant obstacles ahead, our conversation with these industry leaders demonstrated that by consistently championing equity goals, women and allies can continue the progress that generations of women have made before us towards a more gender equal world. diversity-equity-and-inclusionblog, dei, diversity-equity-and-inclusionblog; deisarah moran

This year’s International Women’s Day theme is “embracing equity.” The theme challenges us to consider why “equal opportunities are not enough” and reminds us that allies are “incredibly important for the social, economic, cultural, and political advancement of women.”This challenge, presented to both women and allies alike, to keep striving for gender equity and resist settling into complacency seems particularly fitting in 2023. The past year has brought with it a growing acceptance that the only constant we can depend on is change. Three years after a global pandemic altered our world, there seems to be a growing acceptance that this constant state of unpredictability and volatility across the global economic, social, political, and ecological environments, may be “the new norm” we all talked about in 2020. This broader acceptance of instability brings with it a silver lining: A parallel realization that we cannot afford to wait for “things to return to normal” in order to continue fighting for gender equity. If we do, we risk backsliding and losing the ground that generations of women before us fought so hard to gain. For example, studies have shown that women and girls are more negatively impacted by global economic crises than men, and that the recent rise in inflation rates more negatively impacts women than men. Now more than ever, it is imperative to remain focused on the fight for gender equity. In celebration of International Women’s Day, Lighthouse invited six leaders in the legal industry to provide their perspectives and advice on this topic:Ashley Baynham, Senior Counsel, Litigation, Kaiser PermanenteM. Alexandra Billeb, Senior Practice Manager, Cleary Gottlieb Steen & Hamilton LLPJeannie E. Farren, Director of Case Management and Technology | eDiscovery and Information Governance, MetaKayann Fitzgerald, Director of eDiscovery & Practice Technologies, Davis Wright Tremaine LLP Brooke Oppenheimer, Counsel, eDiscovery, Cyber & Data Protection, Axinn Veltrop & HarkriderMichelle Six, Partner, Litigation, Kirkland & EllisThey have each consistently championed women while fighting for broader equity and inclusion within their own careers and practices. Lighthouse is honored to highlight the valuable insight these leaders provided regarding the current state of gender equity and how we can all continue to strive for progress.In part one of our series, we explore what gender equity means in 2023 and its impact on work and life. And tomorrow, part two will highlight practical advice for achieving greater equity and its benefits in the future. True gender equity is more than a woman’s presence in a conference roomBefore we can discuss how to move forward, we must first define the goal: What would it mean to achieve true gender equity? The overwhelming consensus was that in 2023, a woman’s mere presence in a meeting is not a realization of ‘gender equity.’ Rather, true gender equality comes when women not only have a seat at table, but an equal voice in the conversation: Gender equity is an intentional awareness that creates the fairness in that “seat at the table” where ideas, views and decisions are exchanged and made. While progress has been made, we still have a long way to go as a society to ensure women’s voices are heard and regarded, not ignored and unnoticed. In the words of the late Honorable Ruth Bader Ginsburg, "Women belong in all places where decisions are being made… It shouldn't be that women are the exception."—Kayann FitzgeraldTrue gender equity would mean that women would never have to walk into a conference room wondering what percentage of the participants will be women. It would mean women would never have to wonder if their compensation was equal to that of a male counterpart. The fact that we must still be counted or tallied as “women lawyers” or “women in the industry” is a sign that we have not yet achieved parity. We still have an asterisk next to our name. True gender equity would mean we could eliminate that asterisk. —Michelle SixEquity for women is having a seat at the table, a voice that is heard, listened to, and respected and equal access to opportunities for leadership. —M. Alexandra BillebAchieving equity for women includes ensuring women have a seat at the table, participate in decision-making, and have their perspectives and contributions valued and respected. —Brooke OppenheimerWith that vision for gender equity in mind, our featured leaders provided a few key suggestions for individuals and organizations seeking to create a more gender equal environment. Recognize the true value of our differencesA surprising first step toward creating a truly equal environment may be to recognize our differences. At its core, diversity means variety. It means there are real immutable differences between gender identification, between races, between religions, between sexual orientations, between nationalities, etc. Rather than trying to erase those differences, individuals and companies must recognize those differences:A truly equitable world would not only give equal opportunities to women in the workplace—it would also be fully appreciative of our differences. If you look across certain industries where equal opportunities are given, there's still minimal accounting for societal and biological differences between women and men. Those differences may take a variety of forms. For example, differences in the economic status between men and women due to systemic pay inequities, differences in the mental and physical workload women often carry compared to male partners in family units, differences in the communications styles due to generational gender bias and social pressure on women, etc. A truly equitable workplace must recognize and account for those differences. —Ashley BaynhamOnly once we recognize our differences, can we then recognize and account for the true value (both intangible and monetary) those differences bring to the table:Gender equity and other diversity and equity efforts should not be relegated to a ‘nice to have’ or be put on a shelf during times of economic volatility. Having different and diverse voices represented in the room provides a real and significant value to our clients and to the business as a whole. Without it, we retreat into the predictability of hearing the same voices over and over in an echo chamber. We miss out on new and innovative ideas and lose the potential to learn from a diverse group of people who bring different perspectives, experiences, and backgrounds to the table. —Michelle SixOnce the value of diversity is accounted for, companies and law firms are less likely to marginalize equity efforts during times of economic volatility. Recognize that gender equity is not just a “women’s rights issue”In the same vein, individuals and companies are more likely to focus on rectifying gender inequities when they can clearly see how these solutions will be beneficial to a broader group. There are systemic equity issues that I don’t know how we will address as individual organizations until there is a shared societal understanding that these are issues that affect everyone—this is an obstacle at the very core. —M. Alexandra BillebWe must stay focused on providing opportunities and platforms to empower women to build each other up, while continuing to tear down stereotypes and create cultures focused on the equity mission. The quote, “Gender equality is not a woman’s issue, it is a human issue. It affects us all,” speaks loudly to this point. —Kayann Fitzgerald Historically, we have seen this dynamic play out on a larger stage. When we look back at the history of women’s rights, we can see that the equity issues that women have been fighting for generations (equal educational and career opportunities, better and more affordable childcare options, financial and wage equity, etc.) are not specific to women—they are broader human rights issues.I am fortunate to have a mother who played a significant role to me and many others regarding equity for women. She continually encouraged and pushed against the status-quo during a time where it was more common for women to be married shortly out of high school, have children, and don the homemaker hat. She networked before networking was a thing, created an enviable career in her chosen profession (nursing) while raising three children…all while scratching, clawing, and climbing the equity ladder, bringing along many a female colleague with her. —Kayann Fitzgerald Any progress that previous generations of women have made toward gender equity has exponentially made the world a better, more equitable place for everyone. Equity for women was instilled in me (by my mother) and has deeply influenced my professional endeavors…and now I have a front row seat watching my two daughters create their respective paths and define their “seat at the table.” This awareness, empowerment, and creating access to opportunities is paramount in forming a truly equitable society. —Kayann Fitzgerald Once viewed in this lens, it is easy to recognize how the work we do today to close gender equity gaps will positively impact future generations, regardless of gender. In fact, many of our featured industry leaders recommend focusing on the next generation as one the best ways to make impactful and real change. No matter our gender or background, we all desire to live in a world where our children are not negatively impacted by stereotypes or biases.A truly equitable world for women would be one where gender roles are not engrained into young girls, where young women are encouraged to pursue any career that interests them, not just ones which are stereotypically earmarked for women. —Brooke Oppenheimer I see society evolving from generation to generation in terms of how people think about gender and gender norms. I think the biggest impact we can have on the creation of a more equitable society for women continues to push for that evolution—and that starts with our children. It means stamping out perceptions of gender bias in young kids, and remaining cognizant of the unconscious biases that can develop in children. It means working to ensure that my young son and daughter know they can both play with dolls and they can both play with trucks. We need to continue to evolve past the idea from older generations that "this is for boys and this is for girls." —Ashley BaynhamThis recognition of the universally beneficial impact of closing gender equity gaps is also exemplified in in other areas traditionally associated with the fight for gender equality. For example, one area of significant improvement noted by many of our featured industry leaders was a change to more flexible work environments. Law firms especially have typically required associates to work long hours in an office in order to secure a partnership. Because women have traditionally held the role of primary caregivers in family structures, this requirement led to a high percentage of women dropping out of big law in favor of less structured work environments. For this reason, prior to the COVID-19 pandemic, the fight for more flexible schedules and remote work options was often primarily framed as a gender equity issue. But when the world shut down in 2020, millions of employees experienced the benefits of more flexible work environments, and pushed back against returning to offices and rigid schedules once pandemic restrictions began to fade. In terms of improvement, I think that flexible work arrangements have been a real silver lining of the COVID pandemic. We have proven, over and over, that we can be effective at our jobs at home as well as in the office and early in the morning as well as late at night. Successful organizations will be those that understand we can’t go back to 2019 with 9 to 5 schedules worked on site. —M. Alexandra BillebBecause a broader spectrum of people began to contemplate, recognize, and advocate for the benefits of flexible schedules and remote work options, organizations were pressured to make real, structural changes. In the same vein, many law firms and corporations have also made progress in broadening “maternity leave” to include “paternity leave” or “family leave,” due in part to the increasing diversity of modern family structures. Because there are now more voices advocating for the need for paid time off to spend with new children (beyond just the traditional paradigm of mothers who gave birth to biological children), many companies have begun to broaden their parental leave benefits. In turn, as more people experience the benefit paid time off provides to new parents and children, we can expect increasing advocacy for companies to open that same door for other types of caregivers.I have seen great improvement in work flexibility and a huge commitment to maternity and family leave for both men and women. However, I know that the private sector still fails to position family leave equally. Whether you’re adopting an infant or a teenager, giving birth via surrogacy, or caring for an elderly or sick family member—all of those scenarios should be afforded the same types of family leave options that an employer provides to any employee. We should be striving for a world where there is a uniform family leave policy. —Michelle SixTo impact change more quickly, women and allies can highlight the broader benefits of closing gender equity gaps. For instance, women often face higher rates of workplace burnout caused by remote working because we are still statistically more likely to be considered the primary caregiver in family structures: Working remotely for women in particular has essentially blurred all of the lines and guardrails that use to separate home-life responsibilities from work-life responsibilities. I’m seeing burnout now more than ever before, and it has forced me to become more thoughtful and creative around meeting the women on my team exactly where they are in life. This is a moment in time where we have to allow people to own their schedule, to have the flexibility to be present in their lives in ways deemed most important to them, to blaze their own unique trail and to write their own story. —Jeannie E. FarrenWhile this issue may impact more women than men, it is easy to see how guidelines and tactics that help define clearer boundaries between home and work would be universally beneficial to all remote workers, regardless of gender identity. The same can be said for broader issues that statistically have a greater and more adverse impact on women, like the pressure to cover gaps in school schedules:A significant obstacle to gender equality actually lies in the mismatch between school systems and the reality of modern work environments. In order to have career advancement, you have to be showing up at work— undistracted and focused. Unfortunately, our school systems are still working off a 1940s/1950s model of having one parent at home. That simply is not the reality for most families today. Because women often still tend to carry the physical and mental load of being the primary caregiver in a family, that school structure puts added pressure on women to work around school schedules. This pressure often includes taking more time from work than male partners to accommodate weeks of school holidays and vacations, school start, and dismissal times that do not align with traditional work schedules, etc. And those obstacles and pressure impact people with lesser means much, much harder. —Ashley Baynham Here again, while the issue may impact more women than men, it is easy to see how a better, more modern school system would benefit not only women, but children, families, and those with limited or lesser incomes. Ultimately, then, the fight for gender equity is a fight for equity for all, regardless of gender identity: I believe one the biggest obstacles in advancing equity in the workplace is assumptions. In 2023, we need to remove conventional gender roles, especially post-pandemic, to realign, invest, and lean in on workplace equity. —Kayanne FitzgeraldOnce we can quantify and recognize the value gender equity provides to women and others, the next step is to find practical ways to minimize gender equity gaps. In part two of our series, our featured industry leaders discuss tips and advice for helping us achieve these goals.diversity-equity-and-inclusionblog, dei, diversity-equity-and-inclusionblog; deisarah moran

Few things are more ominous to a company’s in-house counsel than the prospect of facing thousands of individual lawsuits across 30-40 jurisdictions, alongside various other companies in a multi-district litigation (MDL) proceeding. In-house teams can, of course, lean on the expertise of external law firms that have strong backgrounds in MDLs. However, even for experienced law firms, coordinating an individual company’s legal defense with other law firms and in-house counsel within a joint defense group (JDG) can be a Sisyphean task. But this coordination is integral to achieving the best possible outcome for each company, especially when it comes to identifying and sharing the documents that will drive the JDG’s litigation strategies. An MDL can involve millions of documents, emanating from multiple companies and their subsidiaries. Buried somewhere within that complicated web of data is a small number of key documents that tell the story of what actually happened—the documents that explain the “who, what, where, and when” of the litigation. Identifying those documents is critical so that JDG counsel can understand the role each company played (or didn’t play) in the plaintiffs’ allegations, and then craft and prepare their defense accordingly. And the faster those documents are identified and shared across a JDG, the better and more effective that defense strategy and preparation will be. In short: A strong and coordinated key document search strategy that is specific to the unique ecosystem of an MDL is crucial for an effective defense. Ineffective search strategies leave litigators out at sea Unfortunately, outdated or ineffective search methodologies are often still the norm rather than the exception. The two most common strategies were created to find key documents in smaller, insular litigation proceedings involving one company. They are also relics of a time when average data volumes involved in litigation were much smaller. Those two strategies are: one, relying on linear document review teams to surface key documents as they review documents one by one in preparation for production, and, two, relying on attorneys from the JDG’s counsel teams to arbitrarily search datasets using whatever search terms they think may be effective. Let’s take a deeper look at each of these methodologies and why they are both ineffective and expensive: Relying on linear review teams to find key documents. Traditional linear review teams are often made up of dozens or even hundreds of contract attorneys with no coordination around key document searches and little or no day-to-day communication with JDG counsel. Each attorney reviewer may also only see a tiny fraction of the entire dataset and have a skewed view of what documents are truly important to the JDG’s strategy. The results are often both overinclusive (with thousands of routine documents labeled “key” or “hot” that JDG counsel must wade through) and underinclusive (with truly important documents left unflagged and unnoticed by review teams). This search method is also painfully slow. Key documents are only incidentally surfaced by the review team if they notice them while performing their primary responsibility—responsive review. Relying on attorneys from JDG counsel teams. Relying on individual attorneys from the JDG’s outside counsel to perform keyword searches to find key documents is also ineffective and wastefully expensive. Without a very specific, coordinated search plan, attorneys are left running whatever searches each thinks might be effective. This strategy inevitably will risk plaintiffs finding critical documents first, leaving defense deposition witnesses unprepared and susceptible to ambush. This search methodology is also a dysfunctional use of attorney time and legal spend. Merits counsel’s value is their legal analytic skillset—i.e., their ability to craft the best litigation strategy with the evidence at hand. Most attorneys are not technologists or linguistic experts. Asking highly skilled attorneys to craft the most effective technological and linguistic data search is a bit like asking an award-winning sushi chef to jump onboard a fishing vessel, navigate to the best fishing spot, select the best bait, and reel in the fish the chef will ultimately serve. Both jobs require a highly specialized skillset and are essential to the end goal of delighting a client with an excellent meal. But paying the chef to perform the fisherman’s job would be ineffective and a waste of the chef’s skillset and time. Both of these search strategies are also reactive rather than proactive, which drives up legal costs, wastes valuable resources, and worsens outcomes for each company in a JDG. A better approach to MDL preparation and strategy Fortunately, there is a more proactive, cost-efficient, holistic, and effective way to identify the key documents in an MDL environment. It involves engaging a small team of highly trained linguists and technology search experts, who can leverage purpose-built technology to find the best documents to prepare effective litigation strategies across the entire MDL data landscape. A specialized team with this makeup provides a number of key advantages: Precise searches and results—Linguistic experts can carefully craft narrow searches that consider the nuance of human language to more effectively find key documents. A specialized search team can also employ thematic search strategies across every jurisdiction. This provides counsel with a critical high-level overview of the evidence that lies within the data for each litigation, enabling each company to make better, more informed decisions much earlier in the process.Quick access to key documents—Technology experts leveraging advanced AI and analytics can ensure potentially damaging documents bubble up to the surface—even in the absence of specific requests from JDG counsel. Compare this to waiting for those documents to be found by contract attorneys as they review an endless stream of documents, one by one, during the linear review process. A flexible offensive and defensive litigation strategy—A team of this size and composition can react more nimbly, circulate information faster, and respond quicker to changes in litigation strategy. For example, once counsel has an overview of the important facts, the search team can begin to narrow their focus to arm counsel with the data needed for both offensive and defensive litigation strategies. The team will be incredibly adept at analyzing incoming data provided by opposing counsel—flagging any gaps and raising potential deposition targets. Defensively, they can be used by counsel to get ahead of any potentially damaging evidence and identify every document that bolsters potential defense arguments. An expert partner throughout the process—A centralized search team is able to act as a coordinated “search desk” for all involved counsel, as well as a repository and “source of truth” for institutional knowledge across every jurisdiction. As litigation progresses, the search team becomes the right hand of counsel—using their knowledge and expertise to prepare deposition and witness preparation binders and performing ad-hoc searches for counsel. Once a matter goes to trial in one jurisdiction, the search team can use the information gleaned from that proceeding to inform their searches and strategy for the next case. Conclusion Facing a complex MDL is an undoubtedly daunting process for any company. But successfully navigating this challenge will be downright impossible if counsel is unable to quickly find and understand the key facts and issues that lie buried within massive volumes of data. Traditional key document search methodologies are no longer effective at providing that information to counsel. For a better outcome, companies should look for small, specialized search teams, made up of linguistic and technology experts. These teams will be able to build a scalable and effective search strategy tailormade for the unique data ecosystem of a large MDL—thereby proactively providing counsel with the evidence needed to achieve the best possible outcome for each company. lighting-the-way-for-review; ai-and-analytics; ediscovery-review; lighting-the-path-to-better-review; lighting-the-path-to-better-ediscoveryreview, blog, ai, ai-and-analytics, ediscovery-reviewreview; blog; aikdisarah moran

With a new look, and new co-host, Law & Candor returns for its 10th season. Paige Hunt, Vice President of Global Discovery Solutions at Lighthouse, joins Bill Mariano for more compelling conversations with industry leaders and luminaries in the legal and technology spaces.In six brand new episodes, our guests and co-hosts explore some of the most pressing issues for the industry, including: data governance in the work-from-home era; improving mental health in legal and eDiscovery; the power of review analytics; championing diversity, equity, and inclusion; the role of AI in cross-border data transfer; and self-service, spectra solutions for internal investigations.Listen and learn more about the episodes : Episode 1: Data Governance for the BYOD AgeEpisode 2: Review Analytics for a New EraEpisode 3: Legal’s Mental Health ImperativeEpisode 4: Anonymization and AI: Critical Technologies for Moving eDiscovery Data Across Borders Episode 5: Investigative Power: Utilizing Self Service Solutions for Internal Investigations  Episode 6: A Journey from One to All in Legal with Diversity, Equity, and Inclusion   For more news and updates, follow Law & Candor on Twitter. And if you want to catch up on past seasons or special editions, click here.For questions regarding this podcast and its content, please reach out to us at info@lighthouseglobal.com. ediscovery-reviewblog, podcast, ediscovery-review,blog; podcastmitch montoya