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Looking Back at 2020 in Data Law and Looking Ahead to 2021

David Horrigan

Making predictions can be risky business.

You have so many opportunities to be wrong, and only a few to be truly insightful. The law of data discovery is one of those areas that is changing constantly, and 2020 has been a year of constant change.

Relativity legal education to the rescue.

As we’ve done the past several years, we’re offering two webinars—one in December and one in January—to give you a look back at the year in data discovery and a predictions webinar where industry leaders will look ahead to 2021.

The annual Data Discovery Legal Year in Review webinar will be live at 12:00 p.m. Eastern/1700 London on December 17. You can register here. The accompanying Data Discovery Legal Year in Review e-book will be published and sent to all webinar registrants in January, and on January 14, my Relativity colleague, Constantine Pappas, will join me as we present predictions from leaders of the industry and profession.

Read on for a quick look at what’s transpired in data law for 2020, and get a preview of what’s to come in 2021.

Educating with ILTA

We’re pleased to have the International Legal Technology Association (ILTA) join us as co-sponsor of the Data Discovery Legal Year in Review webinar this year, and, as usual, we’ll have impressive lineup of legal experts to review the year in data law with you.

U.S. Magistrate Judge Gary R. Jones (N.D. Fla.) will provide the judicial perspective, and Amie Taal, founder and CEO of the Strategem Tech Solutions Ltd., and a veteran of Deutsche Bank, Grant Thornton, and EY, will provide the international perspective. Professor William “Bill” Hamilton of the University of Florida Levin College of Law will provide insight from the nation’s law schools, while Kelly Twigger of ESI Attorneys and eDiscovery Assistant and Relativity’s David Horrigan will provide legal analysis, including a statistical breakdown of 2020 court decisions on e-discovery, data privacy, and data protection.

The topics will include the U.S. Supreme Court’s first review of the Computer Fraud and Abuse Act of 1986 (CFAA), as the High Court weighs in on a 4-3 circuit split among the U.S. Circuit Courts of Appeals on the criminal provisions of the CFAA. We’ll also look at international e-discovery issues—especially what’s happening in Europe in the wake of Schrems II.

Of course, e-discovery case law is always center stage in this annual program, and 2020 did not disappoint in at least this regard. We’ll be discussing the decision by Relativity Fest Judicial Panel member, U.S. Magistrate Judge William Matthewman (S.D. Fla.) in EEOC v. M1 5100 Corp., as Judge Matthewman raised the possibility of legal ethics problems for those engaging in discovery abuse.    

We’ll go beyond Judge Matthewman’s decision to our usual selection of cases covering e-discovery sanctions, data preservation obligations, and the limits of the attorney-client privilege, with Judge Jones opining on what these cases mean for practitioners and parties going into 2021.

Big Brother’s Big Data

Data privacy and data protection were important issues in 2020—both domestically and internationally—with the public becoming increasingly concerned about the volume and variety of data collected about them.

Domestically, the voters of California approved the California Privacy Rights Act (CPRA), which enhances the current California Consumer Privacy Act (CCPA).

With a January 1, 2023 effective date and a July 1, 2023 enforcement date, the CPRA will move enforcement from the California Attorney General’s office to a newly created California Privacy Protection Agency (CPPA). Also, CPRA will strengthen data restrictions for minors’ data, and it will introduce heightened restrictions for so-called “sensitive personal information” as some laws in other nations do.

Of course, the Big Brother data privacy controversy of the year may go to the Court of Justice of the European Union (CJEU) decision on July 16 in Data Protection Comm’r v. Facebook Ireland, Ltd. and Schrems, which invalidated the EU-US Privacy Shield Framework, which had allowed data transfers between Europe and the United States.

As noted above, Amie Taal of Strategem Tech Solutions Ltd., will be joining us from the United Kingdom to give us the European perspective on how organizations are managing cross-border data in the wake of Schrems II.

Crunching the Numbers

Along with Professor Bill Hamilton telling us about how 2020 affected the nation’s law schools, Kelly Twigger and David Horrigan will crunch the numbers for data discovery law in 2020.  We’ll examine the types of cases courts considered in 2020 while analyzing the trends we’ve seen during the year.

We’ll look for the hotbeds of e-discovery law and let you know which courts seem to be leading jurisdictions in the law of e-discovery, data privacy, and data protection. We’ll then compare 2020 to recent years to help guide you in 2021.

Predictions for 2021

Speaking of guidance for 2021, as we noted above, David Horrigan and Constantine Pappas will get together for our annual Relativity State of the Union Predictions webinar on January 14. In this annual tradition, we’ll have predictions from leaders in the industry and the profession on what we expect to see in 2021. ILTA CEO Joy Heath Rush, always the model of efficiency, has already submitted her prediction—with uplifting advice for the New Year.

Other industry leaders will provide predictions on everything from e-discovery to data privacy, and, as always, we’ll try to have some fun with this one. For instance, nSerio CEO Juan Ramirez will try to top his previous prediction where he was able forecast the presidential run of Kanye West.

Of course, the year in legal education programming for Relativity will be off to a busy start in 2021. In addition to the Predictions webinar on January 14, we’ll have two education sessions at Legalweek(year) on February 3: Anatomy of a Legal Hold: From Corporations and Governments to the Law Firm with Kenya Dixon, David Horrigan, Rosemary Kuperberg, Barry O’Melia, and Philip Weldon, and Your Best Defense: A Data Privacy and Data Protection Roadmap for Legal Teams with Meribeth Banaschik, David Horrigan, Debbie Reynolds, and additional speakers pending confirmation.

The week after Legalweek(year), on February 24, we’ll be joined by the Association of Certified E-Discovery Specialists (ACEDS) for the webinar, TAR on Trial: From Da Silva Moore to Today, where retired U.S. Magistrate Judge Andrew Peck of DLA Piper joins Alicia Hawley of Taft and Relativity’s David Horrigan for a look back at landmark decisions in the law of technology assisted review and this year’s notable TAR case law as well as a mock trial with the lawyers debating TAR law before Judge Peck in what promises to be a notable return to the bench for the day.

We’ll move from winter into spring, where you’ll be able to see many of these speakers at the University of Florida Levin College of Law’s Annual E-Discovery Conference on March 18. You’ll be able to view the entire conference from the convenience of your home or office.

Whether it’s to get your CLE credits or simply to learn about the law of e-discovery, data privacy, and data protection, we hope to see you at these programs.

Be sure to bookmark this page, as we’ll update with registration links and other information as they become available. Thanks for learning with us.

Register for Data Law Year in Review Webinar 2020

David Horrigan is Relativity’s discovery counsel and legal education director. An attorney, award-winning journalist, law school guest lecturer, and former e-discovery industry analyst, David has served as counsel at the Entertainment Software Association, reporter and assistant editor at The National Law Journal, and analyst and counsel at 451 Research. The author and co-author of law review articles as well as the annual Data Discovery Legal Year in Review, David is a frequent contributor to Legaltech News, and he was First Runner-Up for Best Legal Analysis in the LexBlog Excellence Awards. His articles have appeared also in The American Lawyer, Corporate Counsel, The New York Law Journal, Texas Lawyer, The Washington Examiner, and others, and he has been cited by media, including American Public Media’s Marketplace, TechRepublic, and The Wall Street Journal. David serves on the Global Advisory Board of ACEDS, the Planning Committee of the University of Florida E-Discovery Conference, and the Resource Board of the National Association of Women Judges. David is licensed to practice law in the District of Columbia, and he is an IAPP Certified Information Privacy Professional/US.