What we in the eDiscovery profession refer to as “Georgetown” aka the Global Advanced eDiscovery Institute was held COVID-19-style this year – all virtual.   The structure and platform were easy to navigate, and the conference felt like a conference because you could go back and forth between the rooms of the live sessions (which actually was even faster than the in-person get up from your seat, be careful not to spill coffee or disturb too many colleagues around you and walk to the other panel room after you find it).  This is incredibly difficult to pull off in this age of Zoom Fatigue.

The focus was not eDiscovery, TAR or review, but privacy.  In the welcome remarks, Peter Pepiton made that clear and asked for feedback from the attendees as to how much we want privacy to be pushed to the forefront at Georgetown.  I have broken this out into two parts because each takeaway could be a blog post all to itself!

Okay then, lets get right to it!  Below are three of my personal top takeaways from Georgetown 2020:

• The U.S. is going to have to eventually change its discovery rules to include data privacy and/or implement a privacy privilege due to world-wide privacy concerns and the hefty potential corporate penalties at stake, for example in Europe with the GDPR.

• As part of that change, we as attorneys should begin to include data security in our ESI Protocols and should negotiate these early.  Some examples:
  • Receiving parties must represent that they will transfer using encryption.
  • Parties should provide a copy of their written info security program demonstrating reasonable security safeguards.
  • Include procedures for what the receiving party will do if there is a breach: notice, remediation, cooperation, and end of matter disposition of data.
  • Include language regarding the ethical duties to confidentiality (as under the rules there is no true duty to the other side).

• Courts are split on whether relevancy redactions are permitted.  Most courts continue to reject relevancy redactions, but some courts are permitting them.  Courts may permit for reasons such as:
  • requesting party is not entitled to irrelevant confidential information;
  • due to proportionality; or
  • responding party has compelling or persuasive reasons to withhold the information.

In a nutshell, my major takeaways from Georgetown 2020 culminated in two points (1) U.S. discovery rules will need to change to meet data privacy and security concerns worldwide, and (2) we must (as we have in the past) adjust our practices to the rapidly changing chat universe in which we have found ourselves.  We will spend more time discussing takeaways from point 2 next week!