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The Best of Relativity Fest 2021: Our Favorite Commentary

David Horrigan

The pandemic may have forced us into a virtual Relativity Fest for the second year in a row, but it didn’t put a damper on the insightful commentary and witty banter, and—once again—it enabled us to welcome more people to enjoy the experience that is Relativity Fest.

To bring you some of the thoughts you may have missed, it’s our tradition to bring you The Best of Relativity Fest: Our Favorite Commentary from the Conference, a collection of thoughtful takes on issues of the day—and some funny observations about the state of e-discovery. (Your mom was wrong when she said there was nothing funny about e-discovery.)

A disclaimer that we give every year: Obviously, we can’t hear or include every great quote from Relativity Fest. Many of you have had great moments that rival these. Nevertheless, with that disclaimer, to give you food for thought or a brief laugh, we bring you the Best of Fest:

Jonathan Armstrong, partner, Cordery, on the current frenzy over artificial intelligence:

I can remember being a slightly precocious 13- or 14-year-old, devising a computer program, and I was trying to convince people it was AI—the smoke and mirrors element of AI is as old as the hills.

Jared Coseglia, founder and CEO, TRU Staffing Partners, dissenting respectfully from the assertion of Legaltech News Editor-in-Chief Zach Warren in the e-Discovery State of the Union, that it was “all about the money”:

It’s 100 percent not about money. Money is the number-four motivator for candidates in making job moves. They’re completely motivated by working from home, and law firms are going to need to take some of that money and throw it at e-discovery candidates because law firms have gone from 90 percent work from home/flexible to 20 percent work from home/flexible over the last nine months—and guess what? Their searches stay open for 12 weeks, and vendor searches—that are 100 percent work from home—stay open for six days.

Honorable Nora Barry Fischer, Senior U.S. District Judge (W.D. Pa.), noting how COVID has affected the court with the proliferation of video hearings and how lawyers, judges, and court staff are big fans of videoalong with one group you may not have considered:

The prisoners like it. Indeed, earlier today, I had two criminal sentencings, and I can tell you for a fact, many of our criminal defendants will tell us: Number one, they like the video, they can see me more up close and personal than in my courtroom, which is very large, and, in addition, they get to have a lot of family and friends ... we’ve had as many as 16 family and friends be able to participate.

Honorable James Francis IV, mediator, arbitrator, and hearing officer at JAMS, and retired U.S. Magistrate Judge (S.D.N.Y.), commenting on Island, LLC v. v. JBX Pty Ltd, 2021 U.S.P.Q.2d 779 (T.T.A.B. 2021), where a litigant served discovery responses on the day of the deadline at 11:43 p.m. in the Pacific time zone, and opposing counsel moved to get the “nuclear option” of having the discovery responses stricken because the time at filing was 2:43 a.m. the next day in the Eastern time zone, home of the Trademark Trial and Appeal Board, which would make the filing two hours and 43 minutes late:

As a judge, I would not countenance that kind of ‘gotcha.’ I understand there are going to be issues about time zones, but I felt a little like Phileas Fogg in Around the World in 180 Days, not realizing I’d crossed the International Date Line, but the point is: No attorney should be fighting about this. My suggestion to David was instead of engaging in this analysis of the appropriate time zone, judges could simply send the Sedona Cooperation Proclamation along with a copy of Rule 1 and said, “Don’t bother us with this.”

(You can see our analysis of the case—and the additional commentary by Judge Francis—on The Relativity Blog.)

Mike Gamson, CEO, Relativity, on our mission:

Our mission has remained steadfast and unchanged during these turbulent times: To help you organize data, discover the truth, and act on it. While global and industry trends—coupled with your feedback—may inform how we activate our mission, our end game remains focused on what you need to succeed. As we look ahead, investing in artificial intelligence and machine learning technologies—and the people required to innovate on those technologies—are the most impactful series of moves we can make to set you up for success for the next decade.

Karyn Harty, partner, McCann FitzGerald, on the judicial system of Ireland and the sophistication of their judiciary:

We have, I think, probably the best judges in Europe, and we’re very happy to shout about it.

To which Chris Dale, director of the eDisclosure Information Project, and moderator of the Relativity Fest International Panel, replied:

Not on Relativity programs, but we’re used to people trying to sell their products on programs—but it’s very rare we have someone trying to sell their judicial system, and well done.

Honorable Tanya R. Kennedy, Associate Justice, Appellate Division, First Department, New York State Supreme Court, agreeing with Judge Francis’s analysis of the Island LLC case, and adding a new consideration to the two hours and 43 minutes of alleged harm:

Certainly, the question is: What—if any—prejudice did the other side suffer, and I beg to guess that none was suffered, so I agree with Judge Francis that cooperation rules the day in that a deadline is not really a deadline under the circumstances.

Honorable William Matthewman, U.S. Magistrate Judge (S.D. Fla.), on what we will hereinafter refer to as the “Neosporin Doctrine of e-Discovery”:

Discovery disputes can really infect the case ... I’m more inclined to very quickly deal with a discovery dispute—almost like a cut on your finger. You let it go, and you don’t treat it, it becomes infected, and then you have to go to the hospital—as opposed to if you put a little Neosporin and a Band-Aid, it goes away.

And advocating for judges to be involved in e-discovery disputes—but not overly involved—in what we will hereinafter refer to as the “Goldilocks Doctrine of e-Discovery”:

It’s almost like “Goldilocks and the Three Bears”—you want to have the porridge just right.

Josh McCausland, senior specialist in photo and video at Relativity, giving Relativity Chief Product Officer Chris Brown advice on the music for the Relativity Fest opening keynote that would go well with a Cat AI theme:

Think folksy ... Cat Stevens folksy.

But, Mary Mack, CEO and chief technologist, EDRM, had a different musical suggestion, which can be found at the 28:22 mark of the Relativity Fest Associations CEO Roundtable:

Go with Horrigan singing the CLE code about Windy’s stormy eyes.

Judge Victoria McCloud, Master of the Senior Courts, Queen’s Bench Division, High Court of England and Wales, on an unanticipated result of COVID-induced video hearings instead of in-person courthouse hearings:

One interesting side effect, actually, of having remote hearings has been greater press attendance because it’s quite easy just to add someone to a Teams or Zoom hearing just to observe, whereas a member of the press has to come into the court and sit in the courtroom in the normal run of things. So, ironically, press access has been more extensive than it might ordinarily be.

Scott Milner, Partner and Co-Leader, eData Practice, Morgan Lewis, on the Fest experience:

Yesterday, I was at the pinnacle of glory as a Relativity Innovation Award finalist, but—unlike my University of Florida Gators—I lost. Now, I don’t get to go to Disney, and I don’t get to do Rocky on the steps of the Philadelphia Museum of Art. Today, I’m negotiating ESI protocols and leading discovery custodian interviews, while tonight, I’m taking my car to Jiffy Lube.

Ryan O’Leary, research manager in privacy and technology, IDC, on personal information governance:

This is something that anyone who has done doc review knows that people don’t understand: There should be a separation between personal devices and work devices, and if you don’t have that separation right now as you’re listening to this, you may want to go home or log off and do that right away because people doing document review know you can’t go 100 documents without finding objectionable material that somebody has had on their work device.

But adding, as Ricoh USA Vice President David Greetham did at Relativity Fest London, that even using your personal device may not keep you from becoming an e-discovery custodian:

Your personal device is not as private as you think it is.

Kenya Parrish-Dixon, chief operating officer and general counsel, Empire Technologies Risk Management Group, reminding us of the lesson of In re Capital One Customer Data Sec. Breach Litig., No. 1:19-MD-02915 (E.D. Va. June 25, 2021), in that only legal advice—not business advice—is protected by the attorney-client privilege and that the work product doctrine applies only to work prepared in anticipation of litigation:

If you’re not flagging right away that this is in anticipation of litigation, you can forget it—that privilege is going away, so if you’re a corporation, call your lawyer first.

Honorable Andrew Peck, senior counsel, DLA Piper, and retired U.S. Magistrate Judge (S.D.N.Y.), with considerations to the analysis of the Island LLC case in addition Judge Francis and Judge Kennedy “supra”:

First of all, the Eastern time zone is the center of the universe. New York is there. But getting serious, the case shows several things: one, never leave everything to the last minute so you’re cutting it that close—serve your discovery requests a day ahead; second, this is something the parties should have worked out earlier in the case—are you using the time zone of the sender or the recipient? Does it have to be served by 6:00 p.m.? I agree with Jay [Judge Francis]—this was gamesmanship.

Debbie Reynolds, CEO and chief data privacy officer, Debbie Reynolds Consulting, on the state of attorney technological competence in 2021:

It’s about way more than just being able to operate Zoom.

Maribel Rivera, senior director, ACEDS, on inclusion and diversity being about more than you may think:

This is a perfect time for Relativity Fest because it is the last half of Hispanic Heritage Month, the beginning of National Disability Employment Awareness Month, the beginning of LGBT History Month, and International Day of the Girl and National Indigenous Women’s Equal Pay Day are happening as well ... One organization didn’t even think about disability as being part of their diversity initiative—and that speaks volumes when we’re not looking at that piece.

Inés Rubio, senior director, technology (information governance and privacy), FTI Consulting, on the complexities of GDPR compliance:

There are extra layers of complexity. We have guidelines and recommendations from different bodies within the European Union on how to interpret certain aspects of the GDPR. Just to be aware of them is a tough job.

Honorable Xavier Rodriguez, U.S. District Judge (W.D. Tex.), on the 256-page sanctions order in DR Distributors, LLC v. 21st Century Smoking, Inc., No. 12-CV-50324 (N.D. Ill. Jan. 19, 2021).

Yeah ... it was long ... and it was repetitive. ... This case seems to be not grounded in reality with what’s going on in the real world.

(You can see our analysis of the case on The Relativity Blog.)

Joy Heath Rush, CEO, International Legal Technology Association (ILTA):

Homogeneity of thought rarely leads to progress.

and on the discussion at Relativity Fest:

What I really enjoy about this conversation is that we’re looking at technology in the context of the law—not just as technology supporting the law.

Kevin Scott, CTO, Microsoft, on the paradigm shifts needed to establish greater harmony between artificial intelligence (AI) and human intelligence (HI):

Comparing AI to HI is a long history of people assuming things that are easy for them will be easy for machines and vice versa, but it’s more the opposite. Humans find becoming a Grand Master of chess, or performing very complicated and repetitive data work, difficult, whereas machines are easily able to do those things. But on things we take for granted, like common sense reasoning, machines still have long way to go. … AI is a tool to help humans do cognitive work. It’s not about whether AI is becoming the exact equivalent of HI—that’s not even a goal I’m working toward.

Kelly Twigger, principal, ESI Attorneys, and CEO, eDiscovery Assistant, on the clarity of the standard for an “at issue” waiver of the attorney-client privilege:

It’s a bunch of legalese that would take a couple of bourbons to get through.

Kaylee Walstad, chief strategy officer, EDRM, on the Fest experience:

Relativity always brings the education—and fun—to Relativity Fest, and it’s a bright spot of the year for us—from Judge Peck’s deerstalker to Craig Ball’s Thurston Howell III outfit to Stellar Women, we laughed our way through Fest, and we can’t wait for October 26-28 for Fest 2022!

To which Attorney and Forensic Technologist Craig Ball added:

That 568 people would show up early for a red carpet event where no one walks a red carpet is a testament to the excitement we feel for Fest.

Zach Warren, editor-in-chief, Legaltech News, when asked in the e-Discovery State of the Union, “What is the most important news story of the year in e-discovery?” with a little inspiration from those 21st Century American philosophers, Wu-Tang Clan:

It has to be cash money. It has to be dollar, dollar bills. There is a lot of it in e-discovery right now, and you’re seeing a lot of funding from new funders coming into the industry, Relativity included there.

Artwork for this article was created by Sarah Vachlon.

Relativity Fest 2022

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.