I’ve spoken at nearly all the legal technology conferences that have come and gone over the last thirty years. Some, like LegalWorks and LegalTech West, are extinct (suggesting there is no appetite for legal technology west of Las Vegas). Others, like ABA TechShow and LegalTech New York soldier on, shadows of what they once were, annually rearranging well-worn deck chairs. They’re still frantic and fun to attend but TechShow has devolved to a mostly regional attendance and LegalTech’s influence has waned such that the most interesting meetings occur outside the Hilton. Lately, the dynamic and influential meetups are those dedicated to a single product and its ecosystem (think Relativity Fest or ClioCon). A stalwart exception, and an event I always try to cover, is ILTACON, the annual confab of the International Legal Technology Association. ILTACON remains vibrant and relevant, having found its compass after several rocky years of internal squabbling.
I just returned from Orlando and five days of impressive ILTACON content at the Swan and Dolphin hotels near EPCOT. I talked about discovery tools and whether they’ve kept pace with the sea changes in electronic evidence. My take: lawyers are behind the curve and tool vendors aren’t doing nearly enough to bridge the gap.
I’m a passionate student of architecture, with no particular skills, but boundless enthusiasm. Thus, it was pleasing to experience the Swan and Dolphin Hotels, icons of post-modernism and two of the late architect Michael Graves’ most successful efforts. Postmodernism was to last-century architecture what the leisure suit was to 1970’s fashion. PoMo is no mo’, and none need mourn its passing. Audacious in 1990, the Swan and Dolphin remain a good fit for the fever dream of Walt Disney World. Outside of Orlando and Las Vegas, the absurd scale, palette and garish embellishment would have long lost its luster; yet in the House of the Mouse (and dead-flat Orlando), they still work. Aesthetically, that is, not functionally. The interiors are awful and the sprawl exhausting. Home to ILTACON’s evening events, the dark, charmless Pacific Ballroom, should be renamed the Hangar of Terror (photo below. Note the free throw competition hoop and backboard with tables beyond. What could POSSIBLY go wrong?).
E-discovery has become the topic no one wants to talk about anymore. Podium time once dedicated to ESI now goes to blockchain, privacy, diversity, AI, professional mobility and other worthwhile topics that are, sorry to say, NOT e-discovery. So, I commend ILTA for dedicating a full-day track to Litigation Support and folding in vestiges of e-discovery. Much credit goes to David Hasman of Bricker & Eckler, Philip Weldon of Fried Frank and David Horrigan of Relativity, the last also serving as moderator. The LitSupport track shoehorned thirty-odd presenters into five sessions, so we really had to make minutes count. David Horrigan did his usual splendid job moving things along and eliciting our best efforts.
Moved by last month’s fiftieth anniversary of man’s first footsteps on the moon, I began with the proposition that we are all Earthbound astronauts, instrumented and tracked more thoroughly than the Apollo 11 crew in 1969.
Having just returned from two weeks in California and Alaska followed by a month in Europe, I guided the audience through the immense volume of detailed geolocation data amassed during my wander (notwithstanding my iPhone having been in Airplane Mode in Europe). Wherever I went in San Francisco, Juneau, Skagway, Sitka, Victoria, Paris, Latvia, Geneva, Chamonix, Annecy, Yvoire, San Sabastian, Bilbao, Valencia and Barcelona I was tracked, along with the duration of each stop and a description of how I arrived. Then, I displayed Google’s collection of similar information and mapped the cache of geolocation embedded in the many pictures I’d taken. I didn’t expect it to be a surprise to the attendees; but I believe even the tech-savvy denizens of ILTACON were impressed by the granularity and persistence of the geodata. To get a sense of what I covered, check out https://craigball.net/2018/12/01/loving-location-histories/.
Then, I turned to tools, underscoring that none of the data I’d shared was tangible evidence. We need tools to see it and test its integrity. I reminded the audience that ESI is just data, and data are just numbers that encode, text, pixels and geolocation data. Because numbers are easily altered, authenticity and admissibility of modern evidence hinges on whether we can trust those numbers—a trust contingent upon the caliber of our tools and our skill using them. To that end, I demonstrated how easily the encoded geocoordinates of a photograph can be altered to fool the tools.
I noted that preservation and collection have failed to keep pace with review, to the point that we’ve become more adept at reviewing the wrong evidence—a problem I’ve described as The Street Light Effect in past posts. Described by David H. Freedman in his 2010 book Wrong, The Streetlight Effect is a species of observational bias where people tend to look for things in the easiest ways. It neatly describes how we approach electronic discovery. We look for responsive ESI only where and how it’s easiest, with little consideration of whether our approaches are calculated to find the most probative evidence.
Nowhere is this more evident than in the blind eyes cast on mobile data. Mobile data is the most revealing, most candid evidence we have ever had. No wonder so many bad actors and their counsel are determined it does not see the light of day.
I closed by outlining my concerns for the state of investigative software. These are hard times for tools. As e-discovery service providers gobbled each other up, the pace of innovation slowed to a crawl. Consolidation is unfairly blamed for many problems in e-discovery, but, in the digital forensics realm, we talk of little else with justification. The once leading digital forensics tools fairly creak, so far have they strayed from addressing the best new sources of probative data. In their fervent desire to bag bucks from cybersecurity and PII detection, toolmakers diverted resources away from core functionality. Perhaps that’s old news, but matters haven’t improved, and the gap grows larger.
Consolidation has given rise to classic abuses of market dominance. The few companies selling tools to collect and interpret mobile evidence have raised prices and repositioned offerings to wring more dollars (and Euros and Pounds) from hapless customers without complementary improvements in features. How many phones must an examiner process to recoup the $10,000+ it costs to acquire a mobile tool and the thousands more demanded in annual subscription fees? The ascendency (and, to be fair, the technical superiority) of one or two providers has prompted others to abandon development efforts. Instead, the leading e-discovery review tools have resigned themselves to merely ingesting and “prettying up” data exported from a tool sold by a company with its foot on the throat of the entire mobile data market. A tool from a company I won’t name. Based in Petah Tikva, Israel. Starting with “C.” Rhymes with “overbite.” But I won’t say who it is.
It’s not evil. It’s good business. It’s capitalism. Mazel tov! But it’s not good for getting many to the truth in the evidence.
The Streetlight Effect can also be seen in how review tools tend to treat messaging and collaborative communications from applications like Slack. Unwilling to invest resources to purpose-build tools for the data, most service providers try to treat mobile and collaborative evidence as if it were e-mail, Excel data or (shudder) discrete documents. That dog don’t hunt.
The same providers lard their tools with vaunted advanced visual analytics that look fabulous but fail to scale or are not used in practice. The shiny bells and whistles of visual analytics drive sales, but do they deliver genuine insight? I love stretchy bubbles, colorful graphs and bouncy networks as much as the next guy; but I’ve not found them to reveal much that isn’t obvious to the eyes of experienced reviewers and analysts. Your mileage may vary. I’m persuaded visual analytics will someday be powerfully revealing; just not as its been bolted onto e-discovery review platforms to date.
That was about all I could present in 13 minutes, and I hope attendees found it worthwhile.
Unlike its counterparts in New York and Chicago, ILTACON has reportedly grown, notwithstanding falloff in ILTA membership in the U.S. and Canada. There were upwards of 1,500 attendees and over 1,700 exhibitor registrants hawking their wares. I noted plentiful traffic on the show floor and the lobby bar roared day and night.
Past ILTACONs tended to take place in the isolated terrariums of Gaylord resorts (think Stephen King’s Under the Dome). In those hermetically sealed venues, you can’t miss ILTACON’s draw. Spanning two hotels and Disney’s far-flung entertainment venues meant less intimacy, but nearly everyone seemed to be enjoying themselves. ILTACON badges were rife in entertainment venues like Disney Springs (formerly known as Downtown Disney and Pleasure Island). Yes, it’s hot and muggy in Orlando in August; but it beats the heck out of New York in winter! I hadn’t been to Disney in years and was impressed at how it had loosened up. Not quite R-rated, but definitely PG. You could even walk the properties and parks carrying adult beverages, enlightenment I thought unique to my adopted home New Orleans.
At the risk of offending my brethren at the bar (not the lobby bar), one of ILTA’s greatest strengths is that nine out of ten ILTA members aren’t attorneys. They’re the folks who make the technology work for lawyers. Most ILTA members don’t have minions to shield them from the burden of understanding technology; they ARE the minions. Much to their credit.
ILTA is like LegalTech turned upside down. The caste system between lawyers and staff is hardly in evidence, and technology dominates the conversation, not law. ILTA turns the gender numbers upside down, too. No disrespect to ILTA’s many male leaders and members, ILTA feels like an organization where women do more than men and, unlike in law, are recognized and rewarded for same. That feels good.
Speaking of recognition, I was happy to see my longtime friend Donna Payne, CEO of PayneGroup, receive ILTA’s Distinguished Peer Lifetime Achievement Award. I’ve known Donna for much of her lifetime and no one more richly deserves the admiration of her peers. Donna was a pioneer in teaching lawyers about forensic technology, most particularly the perils and power of application metadata. She’s been a selfless friend and mentor to so many in the legal technology world. Donna Payne never seeks the spotlight, but her many good works can’t help but bring it to shine on her.
ILTACON 2020 will return to Nashville, Tennessee, August 23-27, 2020. Hope to see you there!
Many thanks for dinner to:
And to iManage for letting me crash the extraordinary party at EPCOT.