Technology is an ever-changing field, and often, the law and legal industry are unable to keep pace with the steady stream of technological evolutions.
However, more legal professionals are beginning to recognize the importance of aligning the practice of law with new technologies, so the Indianapolis Bar Association is launching its new E-Discovery, Information Governance and Cybersecurity Section in 2017 to aid attorneys as they adapt emerging technologies to their legal practices.
The idea for the new section was born when the four attorneys with Proteus Discovery Group LLC — a legal services group designed to help attorneys use technology to manage their documents — approached the IndyBar about the need for an informative group that could teach attorneys how to wade through the waters of electronic discovery, information governance and cybersecurity.
“The IndyBar is already recognized as a resource in the Indianapolis community for practitioners, and so it was really a perfect synergy to come to the bar association and bring a real opportunity to help attorneys learn about electronic discovery, legal issues and data,” said Jon Mattingly, Proteus founder and director.
Mattingly, along with Proteus Chief Operating Officer Ray Biederman, have led the effort to create the bar’s new section, which will officially launch Jan. 1. The attorneys said the idea of the new section is to not only help attorneys understand technological developments, but also to think like technologists when trying to solve technical problems.
Information governance is the overarching umbrella that also encompasses e-discovery and cybersecurity, Biederman and Mattingly said. Fred Cate, vice president for research at Indiana University and senior fellow of the Center for Applied Cybersecurity Research, said the challenges associated with e-discovery and cybersecurity are often resolved using information governance tactics.
For example, the term “information governance” can often refer to document retention questions, such as how long to keep documents and whether to save documents in a paper or electronic format. Those decisions can translate directly into the realm of e-discovery when attorneys begin searching through documents during the discovery phase of a case.
Considering fewer cases are actually making it to trial, the discovery — and more recently, e-discovery — process takes up the bulk of a trial attorney’s time, said Meredith Thornburgh White, a partner at Barnes & Thornburg LLP and Indianapolis attorney interested in participating in the IndyBar’s new section in 2017.
As she conducts discovery for her various cases, Thornburgh White said it is becoming more common for her to never touch a paper file. Instead, e-discovery is now the name of the game, so launching a bar program that educates attorneys on how to effectively conduct the e-discovery process is crucial to ensuring the practice of law stays current.
Cate said one of the biggest issues in e-discovery is the question of how far the process can actually extend. For example, personal injury attorneys working on a car accident case often request social media records to determine if social media use played a role in the accident.
But when attorneys pursue that route, they often glean more personal information from a person’s social media account than is relevant to the case, Cate said. In those situations, attorneys not only have to know where to draw the line of collecting relevant data, but also have to understand a person’s right to online privacy.
“In a digital world, we end up with digital records of almost everything we do and more than even we are interested in,” Cate said. “So discovery orders can now be much broader than in the traditional form.”
In the cybersecurity realm, Biederman and Mattingly said the goal of the new IndyBar section is to teach attorneys how to deal with data breaches. That aspect of the section will focus on “bridging the divide” between legal and technology professionals and teaching attorneys to think more like technologists when trying to solve the cybersecurity problems that can lead to breaches.
A 2015 report prepared by the Hanover Research Corp. and published by IU Maurer School of Law found that more than half of all corporate law departments surveyed rated cybersecurity as a “high concern,” yet there is a shortage of lawyers knowledgeable enough to address those concerns. About 69 percent of corporate lawyers surveyed said improving formal education on legal aspects of cybersecurity is either very or extremely important.
Thornburgh White agreed, adding that the attorneys who are trained to handle data breaches and other cybersecurity issues require near-constant education and training in order to stay on top of the developments in the field.
Like e-discovery, Cate said the issue of developing an effective cybersecurity plan opens up a host of questions, such as whether it is safe to communicate with a client via email if the conversation contains sensitive information. Those questions often require law firms to take a closer look at their individual cybersecurity practices to determine if those practices are effective and up-to-date with current technologies.
With so many questions surrounding the information governance umbrella, Biederman and Mattingly both said they wanted to create an organization that could educate attorneys on how to implement the most effective technologies in their practices while counseling their clients to do the same in their own businesses.
Providing such education is particularly important in the legal field, the attorneys said, because the law evolves at a slower pace than technology.
Cate agreed and said the IndyBar’s efforts are on the leading edge of the legal community. By nature, the legal field is conservative in the sense that it is slow to react to change, Cate said, so the bar’s decision to offer services designed to speed up the legal transition into the technology realm is a practice that will likely be replicated throughout the country soon.
Even in the initial efforts they have made toward merging law and technology through their own practice, the Proteus attorneys said they have already been impressed at how quickly attorneys are able to pick up on new technologies with just a little guidance.
“It’s all about exposure,” Mattingly said. “Training and just talking to people and giving them the tools.”•