Making a list and checking it twice? Don't forget about the most important law and technology developments in 2012, which also can help guide in-house counsel in the New Year. Here, Foley & Lardner attorney Adam Losey, who also edits the online nonprofit IT-Lex and is a member of the editorial advisory board for Law Technology News (a sibling publication of Corporate Counsel and Texas Lawyer), walks us through his top six tech issues of the year:
1. The use of technology-assisted review and predictive coding: The first case law on this issue emerged in 2012, with courts in New York, Virginia and Louisiana green-lighting the application of computer analytics to discovery. And given how much money companies "waste" on discovery, says Losey, "it's really important to figure out ways to harness technology to do that better."
Depending on the case, technology-assisted review can facilitate large-scale document review and benefit the legal department's bottom line.
"It's not right in every case, but you certainly should consider the application of these technologies," says Losey. "This technology can give you significant cost-savings."
He adds that no one vendor has a monopoly on technology-assisted review and that companies can kick the tires by running quality-control tests first.
2. Preservation as a priority: The Apple v. Samsung litigation has proven to be an epic chapter in the escalating patent wars, but it also demonstrated the increasing importance of data and document preservation.
"The duty to preserve information under the common law arises when you reasonably anticipate litigation," says Losey, and that's the same everywhere in the country.
But once that duty triggers, no matter how quickly attorneys scramble to preserve what they can, Losey says there's always going to be a chronological "gap" in the data collection, which can be made into an issue during a big suit.
"Apple v. Samsung is a great example, because both Apple and Samsung argued the exact same thing: Oh, you didn't act quickly enough to preserve data, and you didn't meet your preservation obligation," says Losey. "Both of them won that argument against each other." Ultimately, both sides agreed to drop the issue in court.
Data preservation only will continue to come under the microscope, says Losey. He recommends that in-house counsel implement a document-retention policy that spells out procedures for collecting and preserving email and other documents when a suit hits. He also cautions counsel to be consistent: If you use multiple firms to handle preservation, differing methods could lead to inconsistencies.