Legalweek signs (Photo: Carmen Natale/ALM)

The stakes are high for the lawyers, paralegals and technologists at ALM Media's annual gathering in New York, especially when it comes to the privacy and protection of mobile data.

As DLA Piper partner—and former U.S. Department of Justice cybercrime coordinator—Ed McAndrew observed, "The best evidence is now held in mobile devices and the apps, social networks and cloud services we utilize with those devices. Any investigator or litigator who ignores that evidence may be committing malpractice in many instances."

To address the vital data privacy and data protection issues of the day, Relativity organized three programs at Legalweek New York on Feb. 5: "The Data Privacy and Data Protection Update," "Mobile Data: Issues in Data Privacy and Data Protection" and "Your Career in Data Discovery, Data Privacy, and Data Protection." Below are some highlights from a few of the panels:

Discovery v. Privacy Smackdown

Sometimes educational programs are fueled by excellent audience questions, and such was the case with the Data Privacy and Data Protection Update panel.

I moderated the session, which featured Robert Brownstone of Fenwick & West, David Horrigan of Relativity, Johnny Lee of Grant Thornton, Debbie Reynolds of Debbie Reynolds Consulting, retired federal judge Andrew Peck of DLA Piper, and Ryan O'Leary of IDC.

In this case, the audience question focused on the inherent tension between broad-based U.S. discovery in litigation and the data privacy and data protection provisions of Europe's General Data Protection Regulation and the California Consumer Privacy Act, portions of which became effective on Jan. 1 of this year.

Specifically, the audience member wanted to know what would happen if a data subject wanted data expunged under the right to erasure provisions of Article 17 of the GDPR or the right to deletion under the CCPA—but the information was subject to a legal hold.

Peck opined—and the panel agreed—that the legal hold would prevail. However, Peck noted the challenges of the U.S. Supreme Court's decision in Societe Nationale Industrielle Aerospatiale v. United States Dist. Court and French blocking statutes, if the request came from Europe.

For requests under the CCPA, Peck and the panel appear to be correct. Article 1798.105(3) provides an exception to the right of deletion for "complying with legal obligations."

Governing the Information

Of course, these issues go beyond e-discovery in litigation. Debbie Reynolds, for instance, noted the information governance requirements.

"The new reality is that navigating the data privacy rights of individuals everywhere will be an operational necessity for businesses to thrive in the digital age," she said.

Shahaf Rozanski, head of Cellebrite Business Solutions, agreed with Reynolds and noted that special policies were needed in today's mobile world.

"The growing significance of mobile data for e-discovery and corporate investigations requires corporations to set proactive policies for preservation, collection and review of mobile data," he said.

Grant Thornton's Johnny Lee said he believes technology may be the answer.

"Centralized institutions—from social media platforms to governments—have shown that they may not be capable of fostering privacy in the manner that the global citizenry has come to expect. I'm particularly excited about technology advancements, like blockchain, and the privacy potential that they augur," he said.

However, Kimberly Quan of Juniper Networks, who spoke on a Legaltech artificial intelligence panel, urged caution when wielding technology.

"Many are championing and effecting privacy protections around the pervasion of AI into our lives; conversely, there are those who would put power or profitability first. That is yet another example of what I call the 'superhero dilemma'—those who are ethical and respectful in their application and wielding of power may be at a disadvantage. As an example, facial recognition technology is already being used in some countries toward … shaming, subjugating or even imprisoning its citizens," Quan said.

Data Jobs

The other panel of the program featured lawyers and a prominent legal recruiter discussing the different pathways to career success in data discovery, privacy and protection.

The panel featured legal recruiter Jared Coseglia of TRU Staffing Partners, and attorneys David Horrigan of Relativity, David Kilgore of Rackspace, Scott Milner of Morgan, Lewis & Bockius, Ines Rubio of BSI and Kelly Twigger of ESI Attorneys and eDiscovery Assistant, a software developer.

Observing the varied career paths the panelists had taken, Morgan Lewis' Milner said the legal career path no longer took a preordained path directly from law school to the law firm.

"It was clear from the engaging panel discussion that legal career paths are much broader than they have been in the past. There are new and evolving roles for technology-related jobs in our industry, and there are steps people can take, no matter where they are in their careers," Milner said.

Rackspace's Kilgore took one of the new, more circuitous paths to his role as corporate counsel at Rackspace, having served both as an IT manager at Rice University and a motor sports racing official. Kilgore said his years as a racing official taught him some important lessons for his legal career.

"The funny thing is that race car teams and legal e-discovery teams are a lot alike. In car racing you see the driver, and in legal cases you see the attorney, but that race car isn't going anywhere without the technical expertise of the fuelers, engineers and crew chiefs on the pit crew, and that legal matter will never make it through discovery without the IT administrators and systems analysts on the e-discovery team."

David Horrigan is discovery counsel and legal education director at Relativity. An attorney, journalist, and law school guest lecturer, he is a former reporter and assistant editor at The National Law Journal and contributing editor at LTN.