One happy-looking CEO does not make a boom, but the general air at LegalTech 2010 was one of optimism. That indicates more than just good times for litigation support companies. What are the trends, and how will the litigation software and services suppliers make the most of better times ahead?
LegalTech over, I was slumped in the corner of BA’s executive lounge at JFK on Friday night, off duty for the first time in a week, and clutching a large whiskey. The CEO of a well-known software company swept past, late for his plane. His grin lit up the room: “We’ve had such a good week” was all he said as he rushed by. He may have expressed the mood more simply and succinctly than others, but that was the impression which I had already formed of the general atmosphere at LegalTech. Read the rest of this entry »
CaseCentral’s Case in Point cartoon series maintains its quality with this week’s one in which Toyota explains what drives its eDiscovery purchasing strategy.
I spotted a judge at LegalTech wearing a No Processing badge which emanated (anonymously) from CaseCentral. Full marks for the marketing.
The customers remember best what happens last, whether you are running an e-Discovery project for them or flying them across the Atlantic. It seems a shame to do it all so well and then screw up at the end.
I am generally fond of British Airways. I like to see its colours in remote corners of the world; I appreciate its treatment of frequent flyers; its planes seem to take off at more or less the right time and land in the right place. What a pity, then, that my otherwise faultless flight from New York on Saturday ended in my being trapped on the plane because no one had thought to provide the buses to take us off.
They could not have been more helpful in New York, even volunteering to move us to an earlier plane to get us out before the snow. We don’t expect real food. It was a bumpy ride, but the cabin staff were efficiently good-humoured and we arrived at Heathrow on time notwithstanding the conditions. There, however, the process and my goodwill ran out simultaneously. Read the rest of this entry »
I have recently written a white paper about Equivio>Relevance and was subsequently interviewed about it by Metropolitan Corporate Counsel – both if these can be found on Equivio’s publications page.
A recent article by Marisa Peacock on CMSWire called Equivio makes Early Case Assessment more relevant adds some diagrams to illustrate the statistics which I mentioned in my paper. One shows the increase in the number of relevant documents found by Equivio>Relevance compared with a review team, and the other shows the rate at which the bulk of those responsive documents was found. The point of the latter, if that is not clear, is that if more of the relevant documents are found earlier in the process, the sooner the lawyers get to see the ones which matter. Read the rest of this entry »
My job is promoting the eDiscovery industry and the companies who engage in it, and I do not focus much on promoting me. I cannot resist this, though.
Having an article listed in the Weekly E-Discovery Snapshot which Rob Robinson runs, now for Applied Discovery, is something of an honour, given the mass of interesting and important material which is published each week.
I do not know if there is a connection, but my monthly page views are up by 30% on the September-November average (5,000 to over 6,500 with January not yet done).
Mysterious messages have been appearing on Twitter all week like “In 85% of data breach cases, payment card information was stolen”. They all lead back to an analysis of data compromise cases over an 18 month period which 7Safe have published in conjunction with the University of Bedfordshire, supported by SOCA (Serious & Organised Crime Agency) and the Metropolitan Police Service. It is called the 2010 UK Securty Breach Invesigations Report.
7Safe’s Alan Phillips has been busy with a blog which now includes, in addition to written comment, some videos and photographs (including one of me, I see, now I look closely). I have not had the chance to look at the videos yet, but I am, as you know, keen to see all kinds of media pressed into service as marketing tools, whether of the wider concepts of edisclosure or for particular suppliers.
Alan Phillips will be at LegalTech along with Jim Kent and Adam Page of 7Safe, not so much on the subject of security breaches, but because of the company’s role as hosting provider of Anacomp’s review platform CaseLogistix.
Information retrieval experts H5 has always come across as a cross between a commercial information consulting business and a research university, talking as much about its people – “with professional expertise in linguistics, statistics, computer science, law, information technology, process engineering, and e-discovery” as the web site puts it – and its involvement in the Text REtrieval Conference (TREC) protocols, as about its services.
It has now produced an application called the H5 Edge Classifier, which is designed to sit on top of an organisation’s existing search tools and integrate with them.
I know no more than appears on the page to which I have linked, and I only break my usual rule about merely passing on basic information – which any fool can do – because I learned about this too late before LegalTech to discover more. I hope to do that at LegalTech in New York next week, and will report back after that.
FTI Technology will be out in force at LegalTech, as you would expect from a company whose range of products and services cover the full range of eDiscovery problems and solutions.
They commissioned an IDC survey which was published in 2009 and whose findings included the following:
Multinational litigation is growing more common. Close to 70% of panelists indicated that their companies are involved in legal matters with multinational requirements.
Most large matters take more than two years to resolve. 64% of respondents said their largest matter took over two years to resolve, and 35% indicated that their largest matter lasted for more than five years.
Data collection volumes are growing. The proportion of panelists whose average ESI collection per matter was larger than 2.5TB increased 18 points from 19% of panelists in the 2008 study to 37% of panelists in the 2009 study.
E-discovery budgets are flat or decreasing. 36% of respondents said their budgets were flat and 42% said their e-discovery budgets were declining.
Anacomp are running a panel in the New York suite at the Hilton on Tuesday 2 February at 10:30 AM. I will not, unfortunately, be there, because I am on another platform at the same time.
Chuck Kellner, Vice President Consulting for eDiscovery of Anacomp
Michael Shannon, CIO of Dechert LLP
David Baldwin, Litigation Support Manager of Choate Hall & Stewart LLP.
The session led by Chuck Kellner at the Masters Conference was one of the most interesting ones there, with its focus very much on practical issues. Anacomp is a consulting business as well as the software company behind the review platform CaseLogistix. With a technology provider, an information officer and a litigation support manager on the panel, we can expect input covering every angle.
I have already mentioned one of the four panels which Stratify is running on Tuesday, 2 February in the Sutton Parlor Center Room at the Hilton in New York. The sessions are as follows:
8.30 Can we have our cake and eat it, too? Cooperation vs. zealous advocacy
10.15 How much justice can we afford? Rescuing civil justice from the costs of eDiscovery
12.45 Is the tail wagging the dog? Winning on the law instead of winning on eDiscovery
2.30 The Good, the Bad, and the Ugly? International judges panel comparing different legal systems and eDiscovery approaches Read the rest of this entry »
I am the moderator of the panel Best Practices for Successful Multinational E-Discovery which comprises a mixture of people I know well and those whom I do not know at all. They are:
Kirby Behre, Partner, Paul Hastings Janofsky & Walker LLP
David Kessler, Partner, Drinker Biddle & Reath LLP
Browning Marean, Senior Counsel, DLA Piper US LLP
Steven Whitaker, Senior Master of the Senior Courts of England and Wales
Greg Wildisen, International Managing Director, Epiq Systems
I do not anticipate that we will run short of things to say, not least because the decision in AccessData v Alste (see my post about it ) has brought back onto the agenda the continuing conflict between US data collection requirements and EU data protection laws. Since one of our number, Senior Master Whitaker, is responsible for Hague Convention matters for England and Wales, we can expect a lot of interest in this session.
Is the rest of the ediscovery world really ten years behind the US? Perhaps it is Judge Scheindlin’s recent strictures which put the US so far ahead of the rest of us in the proportionate search for justice and truth.
There are those who say that one should never look back, and that the past has no lessons for us. I do not underestimate the value of anticipating what is round the corner but, since my degree was in history, I do not underestimate either the value of understanding the past as a component in anticipating the future.
It is one of the truisms of life – of personal life as well as business life – that one underestimates the rate of progress from this point on. We think each year that we have reached a plateau from which culture, business and technological change will advance only slowly. Those who predict rapid change are assumed either to be cranks or to have something to sell. The fact that this is actually true of many prophets (whether of doom or of beneficial change) does not get us away from the certainty that the rate of change is increasing. Read the rest of this entry »
I was speaking in Singapore when news broke of e.law’s acquisition of CCH Workflow Solutions. It added to my general impression (which I was bold enough to turn into a prediction) that the Asia-Pacific region was the place to watch for 2010.
The months following the merger of two businesses are not the best time to keep in touch with people, and although I have exchanged a few messages with Allison Stanfield and Scott Gillard, both of whom I knew pre-acquisition, I have not really kept up with how things have worked out since the acquisition completed towards the end of November, beyond hearing that the multiple locations which the combined business now has, with offices and service centres throughout Australia and Asia, are very busy (I did pick up someone’s Google search for < Allison Stanfield Antarctica > but when I checked, that was about something which e.law had sponsored, not a new office). Read the rest of this entry »
A series of announcements from Autonomy coincide with what I see as the coming developments in the UK and elsewhere, enabling the lawyers to work collaboratively with clients.
As one would expect, Autonomy has come up with a series of announcements in advance of LegalTech. One of them is about the large number of awards – six in all – which they are to be given by Law Technology News on LegalTech’s opening Monday evening.
The others are about three product launches – DSMail , a self-service archiving solution for email management, governance and ediscovery, iManage ConflictsManager, which enables law firms to streamline the management of their conflicts of interest process, and the Autonomy eDiscovery Appliance which combines early case assessment (ECA) and legal hold capabilities. Read the rest of this entry »
An article by George Rudoy on the Georgetown Law site, which includes some input from me, reawakens the debate about certification of those who work in eDiscovery. Education on this subject was a key recommendation of the recent UK Jackson Report and I am (as you might expect) an enthusiast for it. Why am I against certification?
One of the key topics of 2009 in the US eDiscovery world was the extent to which it is desirable, helpful or necessary to establish a scheme for certification of those engaged in litigation support and eDiscovery. George Rudoy, Director of Global Practice Technology & Information Services at Shearman & Sterling LLP, is well-known for his role in practical education, and has just published an article whose title eDiscovery certification — reality or myth? implies that the subject is not as straightforward as one might hope. Who would argue against education of those engaged in the high-value and risk-fraught business of electronic discovery, or electronic disclosure as it is in the UK? Read the rest of this entry »
Those from the UK who were confined to barracks last year and unable to go to LegalTech may be glad of a reminder that one must now apply in advance under the Visa Waiver Program via ESTA, the Electronic System for Travel Authorization.
The link above is direct to the official site – there are several sites which look “official” but which offer a service whose value is hard to discern. If you have internet access you can complete the form yourself, and if you do not you won’t see the sites anyway. Read the rest of this entry »
The broad idea about recovery of the costs of litigation is that the so-called “English Rule” allows a successful party to recover his costs from the loser, whereas the costs of US litigation lie where they fall. It is not as simple as that – but this post is not an attempt to unravel the subject.
There is some doubt as to the extent to which a successful party to UK litigation will get back the costs, however reasonably incurred, in using external help to handle disclosure. There is little doubt that he should, it is just that evidence of actual outcomes is hard to find – the question came up at a recent meeting of the London Solicitors Litigation Association where no-one present had experience one way or the other. Read the rest of this entry »
I try to avoid spending too much time at LegalTech looking at applications. I am much more interested in talking and listening to people, and three days is just not long enough to fit everything in. I generally limit my viewing to those whom I know or those who have something particularly new or exciting to offer, particularly if relevant to the UK market. Inevitably, they all think that their latest addition to functionality is both new AND exciting, and all reckon that their new release is just what the UK needs, including some who could not find the UK on an atlas.
I will go and see Nuix 3, however, partly for its own sake and partly to catch up with Nuix CEO Eddie Sheehy whom I met in Sydney at last year’s Ark Group conference there – one of those people who pours out ideas and enthusiasm in a way which, I suspect, would-be buyers find both infectious and persuasive. Read the rest of this entry »
Almost everybody who tweets about eDiscovery offered links to Craig Ball’s article called E-Discovery for Everybody: the Edna Challenge. In it, Craig sought the input of several influential players in the market on behalf of Edna who needed to undertake electronic discovery of a not insignificant collection of documents with only a small budget. The suggested remedies ranged from Nuix (a Craig Ball favourite) down to the suggestion that Edna “blow her budget on alcohol and amphetamines”.
Everyone facing e-Discovery / e-Disclosure on a small budget should read this article, including those in the UK, and I will come back to it in due course.
Another decision of a US court shows the supremacy of the US courts over EU laws, at least as seen from the US. It doubtless plays well in Utah, but is probably bad news for US evidence-collection in the long term.
Before I begin, it would be kind to explain my title for those who are not au fait with recent US cases on data collection in Europe and with the claimed supremacy of the Federal Rules of Civil Procedure over EU data protection laws. In ordinary parlance, a “global power” is what the USA sees itself as. Nobody argues with that although, as events unfold before the Chilcot Inquiry into the decision to join America in the Iraq war, we do not share Tony Blair’s view that our relative status requires us to yap support like a sycophantic poodle whenever America condescends to speak to us. Access to data needs no explanation but, curiously, gives rise to much the same feeling in Europe vis à vis the US. By chance, the two most recent cases involving the claimed supremacy of American courts over trifling matters like EU data protection law are called, respectively, In Re Global Power Equipment Group, Inc and AccessData v Alste (see as to the first of these cases a helpful article by Morgan Lewis called French Blocking Statute still gets no respect from US court). Read the rest of this entry »
The UK’s appetite for stories and comment about outsourcing remains undimmed. A a long article in The Times on 15 January carried the title Brief for India’s outsourcing lawyers: keep it cheap. Ron Friedmann of outsourcers Integreon, an astute observer of the international outsourcing market, wonders what prompts this show of UK interest in outsourcing with, he reckons, at least one article a week in the British legal press. I am not the only one to have invoked the traditional attributes of Lemmngs on this subject (see Georgetown Law: to Insource or to Outsource by George Rudoy). A more realistic and less clichéd reaction would be that the subject has grown slowly in importance in the US and arrived fully-formed in the UK. Read the rest of this entry »
One of the best panels at the Masters Conference in Washington last year was the Women Thought Leader Panel: The Art of Negotiating E-Discovery moderated by Caitlin Murphy of CT Summation and including Shawnna Childress of LECG, co-founder of Women in Discovery. I introduced Shawnna to HHJ Simon Brown QC and she pinned a pink W badge to his lapel, thus making him a member of her gang – a role he has pursued zealously ever since back in the UK,
There have been several good consequences and possible outcomes from that, one of which is that IQPC are running an extended streamed session with Women in eDiscovery at their usually well-attended London information retention conference on 18-19 May, which Judge Brown will address. I will come back to all that in due course.
That, alas, overlaps with Stratify’s judicial session, which I will certainly attend because two English judges are taking part, and with a meeting, so I will not be able to attend. If it is as good as the one in Washington, it will be well worth going to.
I missed the new Ontario E-Discovery Rules of Civil Procedure which came into effect on 1 January. By “missed”, I mean that I knew about them but decided that it was a topic important enough to be put on one side until I had time to review them properly. That is not going to be this week, so instead I refer you to the thoughtful and well-hyperlinked commentary Ontario Rules of Civil procedure on e-Discovery come into effect by Ledjit whose Dominic Jaar I hope to see at LegalTech. Read the rest of this entry »
Guidance Software has released EnCase E-Discovery 4, which offers a pre-collection analytics capability as well as the ability to analyse and review ESI throughout the key discovery processes – during a legal hold, during forensic data collection, post- collection, during and after processing and on into first-pass review. This brings all these phases within the reach of an in-house team – and since that seems to be the way the world is going, the release is timely.
Guidance Software is getting good at using alternative forms of media to get information out to the world – I wrote approvingly about a video on EnCase Portable (see Show me more like this) last August because it showed a hands-on guy getting his hands on an application and showing us how to use it. Read the rest of this entry »
This is a useful supplement to the Posse List’s growing collection of eDiscovery resources and to the flood of press releases which we can expect between now and the opening of LegalTech.
Once a decade, we get a large and influential report on Civil Procedure in the Courts of England & Wales. Once a year, the largest and most important e-discovery conference takes place in New York. Did they have to take place within a few days of each other?
In mid-September 1066, Harold Hardraada of Norway pitched up on the Yorkshire coast with an invading army. The English King Harold set off from London with his army and smashed the invading forces at the Battle of Stamford Bridge on 25 September. Three days later, Duke William of Normandy landed at Pevensey on the south coast. King Harold was back in London by 6 October and the Battle of Hastings took place on 14 October. Nineteen days elapsed between these two battles at opposite ends of the country.
That is one day more than the interval between the publication of Lord Justice Jackson’s Final Report on Civil Litigation Costs and the opening of LegalTech. It is better than having to trail your army up and down the A1, but you would not want to be the person who is expected to comment on both, would you?
It is hard to underestimate the interest shown in Jackson in the UK. 3000 people signed up to watch Dominic Regan’s webcast on the afternoon of the launch. I published 2,500 words on it that night (see First thoughts on the eDisclosure implications of the Jackson Report); the second edition of the LexisNexis book on Electronic Evidence, for which I have written a section, was waiting to go to press and had to be updated in a hurry; I have in hand a big paper whose final form must reflect the e-Disclosure sections of the Jackson report; a date in mid-February is fixed for recording a podcast — “this leaves plenty of time to do some prep” says CPDCast optimistically; conference organisers want to fine-tune their agendas; and then the editor of a prestigious legal computer magazine asks for a couple of thousand words on Jackson. This is all good stuff, and I could not be happier than in complying cheerfully with all these requests. Read the rest of this entry »
The latest edition of Charles Christian’sAmerican Legal Technology Insider is now out and can be downloaded from here.
Its author has been laid low by successive waves of flu in various varieties and this edition is slimmer than usual – as perhaps is Charles after his ordeals, which have included having to deal with NHS Direct. This, for those of you whose government did not actively but accidentally encourage its doctors to opt out of out-of-hours medical cover, is a kind of call centre where people keen to learn English-as-a-foreign-language get paid to polish their conversational skills whilst interposing an additional administrative layer between sick people and someone with medical skills. Interestingly, they use Twitter to say things like “Sorry you feel that way Charles. How do you think we can improve?” and “Well, if you’d like to complain, or you have constructive criticism you want to share, do follow the link I sent”, though I am not convinced that they will follow the suggestions which ensued.
The useful content (of this edition of Insider, not NHS Direct’s advice) is enhanced still further by the Dilbert cartoon which appears at the end – a conversation which, I fear, we will see replicated in UK courts as costs management becomes more common.
A reminder that Anacomp, owners of review platform CaseLogistix, have a live webinar today, Wednesday 20 January, called Beyond the Buzz: Measuring and Managing eDiscovery with Early Case Assessment.
Tom O’Connor and Chuck Kellner, along with Chris Smith, Senior Product Manager at Anacomp will discuss:
What is ECA? Perspectives from Then and Now
The Goals
Measurement and Management
ECA as a Managed Process
Achieving the Desired Outcome: How ECA Supports the Other eDiscovery Phases.
We have seen some high-profile mistakes in the discovery world recently. We should discriminate between incompetence and stupidity or oversight. A mistake is not an ediscovery mistake just because it involved electronic documents.
The mirth generated at the expense of the already much- despised OFSTED over its “stuck in the photocopier” excuse for non-disclosure has been eclipsed in Australia by the discovery that two parties have spent five years and hundreds of thousands of dollars fighting over the wrong document.
The story is found in an article called Farcical End to 5 Year Lawsuit (thanks to Jonathan Maas of DLA Piper for spotting and tweeting about this). The claim involved an allegedly defamatory press release which, on the second day of the trial, was discovered to have been merely a draft. It transpired that the plaintiff had complained about the terms of the draft and that what was actually published was a moderated version. The action had proceeded on the basis that it was the draft which had been published. The defendant, the Australian Prudential Regulation Authority, had not only admitted in its pleadings that the document had been published but had made an offer to settle the case. Read the rest of this entry »
The speed with which I got reactions to a tweet of Saturday showed the power of this medium. That is great if that is what you want, as I did, less so if that was not the intention. My arm is fine, thanks.
It was a short, pissed-off sort of tweet, which read Charlie Dale has broken his arm falling on the ice – just great for a drummer. Most of my tweets are business-related – they are either about eDiscovery / eDisclosure or are meant for people I know, most of whom are friendly members of the eDiscovery world. I put a measured amount of personal information (that is, information about me as opposed to the market) because a commentator’s comments are more valuable if you learn something about him – what you know about his background, prejudices and cultural hinterland affect the weight you give to his observations. Besides, if all I did was copy and paste press releases, no-one would come and read what I write. Read the rest of this entry »
Good eDiscovery marketing must give would-be clients useful information and help, not just shout “buy me” with a list of functions and benefits. All forms of media must be pressed into service, and value lies more in helpful content than in glossy presentation.
We are suddenly hearing a lot about Applied Discovery, which has been in the electronic discovery market since 1998 and part of LexisNexis since 2003. I will be meeting them at LegalTech in New York at the beginning of February and will find out more about the products and services, not least the introduction of a new Global Alliance Partner Program whose aim is to deliver complex discovery services worldwide to law firms and corporations. The press release is here and there are links from it to pages about the products and services which Applied Discovery offers.
What interests me for present purposes is the pure marketing angle. Here is a company which has been around forever, doing solid business in the e-discovery market, so far as I am aware, but not really attracting attention – my attention, anyway. Suddenly its name is everywhere. Wearing my marketing hat, I have to wonder why. Read the rest of this entry »
The technical difficulties with the New Law Journal’s free Jackson webcast derived, apparently, from the best of reasons – a very large number of people wanted to watch it (that is what happens when the Dale publicity machine gets going on your behalf, as it did for this show).
The delay in going live meant that I could not watch it all – I had my own 2,500 words to get out on the subject yesterday. What I saw was very good, with Professor Dominic Regan able, as usual, to get the best out of his panel on a subject for which he evinces a passion to match his knowledge.
I dropped Dominic a line last night to congratulate him and to see if the webcast would be available for those who missed it yesterday. He tells me that it is – go to New Law Journal and follow the link – and that it will go on YouTube at the weekend.
The very wide interest in Lord Justice Jackson’s Report reflects not merely its importance but the fact that almost no corner of the litigation field is untouched by it. Visits to my blog exceeded my previous record (almost by 2x) before I had even published my own article on Jackson.
The sections relating to disclosure and e-disclosure in the Jackson Report are a call to action for lawyers and judges without waiting for any actual amendment to the Rules. The key element which Jackson identifies is education, and we can get on with that tomorrow.
The 558 pages of Lord Justice Jackson’sFinal Report on Litigation Costs have hit my screen with a thump. My focus inevitably is on the sections relating to disclosure and e-disclosure between pages 364 and 374, and on the section on disclosure in the Case Management section beginning on page 275. As with his Preliminary Report, Lord Justice Jackson devotes a section to e-Disclosure separately from the section on disclosure itself, that is, the mechanics are distinguished from the scope of disclosure. Lord Justice Jackson’s concise style means that a great deal is packed into these few pages. It is all good stuff. Read the rest of this entry »
Those of you struggling to connect to the New Law Journal’s site to hear the much-hyped webcast with Lord Jackson (much-hyped by me quite apart from the NLJ), may like to know that the rest of us have the same problem.
There seems to be a database connection issue, which existed when I tested it first thing today but righted itself during the morning. Now it has gone again. I do not think this is just because thousands of us are trying – that would not have been the case earlier.
Another use for Twitter emerged during the NLJ’s database connection debâcle – it took seconds to hear from four or five people with the same problem, which at least showed each of us that the problem was not just with our own connections. The final message in the sequence read “Sod the webcast – need some lunch”.
Quite what it will do for those whom we seek to convert to technology that this apparently simple task foundered on connection issues is hard to predict. My screen turned pink at one point and displayed a stream of messages announcing “MySQL server has gone away” – along with the audience, alas.
Let us hope that the NLJ managed to press the “record” button on the tape recorder all right, and that they will offer us all (and not just their subscribers) a chance to catch up with the webcast as a reward for our attempted diligence.
This is the full text of New Law Journal’s latest reminder about today’s webcast at 1.00pm GMT
New Law Journal will host a live panel discussion on the key proposals and practical implications of Lord Justice Jackson’s final report on civil costs litigation on www.newlawjournal.co.uk after the official press conference on 14 January.
To take part, simply go to www.newlawjournal.co.uk on 14 January 2010 before 1pm and click on the link in the featured article about the webcast. There will then be a space for you to enter your name and email address and a link which says ‘view now’ and this will take you to the webcast video.
Viewing tips: To ensure you can view the webcast please test your network at www.lexisauditorium.com/mptest.aspx before the webcast starts. The VoD version will be available immediately after the live event for NLJ subscribers
Professor Dominic Regan, a leading authority on civil procedure and costs, will chair the free webcast.
Panel participants:
His Honour Michael Cook, author of Cook on Costs
David Greene, president of the London Solicitors Litigation Association, partner at Edwin Coe
Bob Musgrove, chief executive of the Civil Justice Council
Nick Bevan, senior counsel, Bond Pearce
The panel will offer immediate, expert analysis on the key points raised by the final Jackson report and predict the potential impact of his recommendations on the world of costs.
UK-based legal support provider Trilantic has put together a double panel session on EU data privacy and related subjects which takes place on the first day at LegalTech, Monday, 1 February.
Subjects covered will include privacy considerations and EU data protection rules, compliance with them, and the proper response by corporations to US litigation and regulatory matters involving data held in the EU.
These subjects increase in importance each year. US courts and regulators are becoming more demanding whilst, simultaneously, EU countries become more and more protective of data held within their borders. Read the rest of this entry »
The main theme of the interview was the extent to which lawyers can rely on modern software applications to help them get quickly to what is important from a large collection of documents. This is not just a matter of having a “defensible” process in the sense of one which can be justified to opponents or to the court. The first person who must be convinced is the lawyer himself. Before any lawyer will delegate any part of the process to a machine (for that is how many of them see it) he must be convinced that the result will be at least as good as would be obtained by manual review. In practice, of course, manual review is neither practicable nor all that it is cracked up to be in terms of its accuracy, even before the comparative costs are brought into account – manual review means lawyer time, and that means expense. The technology discussed in the interview cuts through much of that expense, to say nothing of the elapsed time to a conclusion. Read the rest of this entry »
Those who come here often will know that I was in Singapore in October last year shortly after the introduction of their Practice Direction No 3 on Discovery and Inspection of Electronically Stored Information . I had been invited to speak at and to co-chair the LexisNexis conference there, and Senior Master Whitaker was in Singapore anyway at the invitation of the Singapore courts. My article about it LexisNexis eDiscovery Conference in Singapore made it clear that I expected Singapore to become a source of interesting and positive developments in the e-disclosure / e-discovery market.
Singapore is of particular interest in that, whilst it clings (quite rightly) to the proper term “discovery”, its discovery rules are firmly based on the disclosure rules of England & Wales. It has the luxury of taking the best of developments in other jurisdictions which, whatever they call the process, require the preservation and exchange of documents. Read the rest of this entry »
A new survey relies on the ability to analyse Twitter usage, and Twitter has begun a drive to make money from its data feeds. Both point towards the use of Twitter data as discoverable information.
I wrote an article last week called Tweeting weights and weighing Tweets which described how I use Twitter both as a source of information and as a means of telling readers about my own articles. Amongst the benefits, I said, was the development of ad hoc communities of interest in which formal introductions and agendas were unnecessary to get a discussion going.
I also referred in passing to the inconvenience caused by the UK’s pointless use of the word “disclosure” in place of the term “discovery” used in the rest of the world. That includes amongst its by-products the need to flag tweets and other web content with both terms – to call Twitter’s own search tools “rudimentary” is over-polite.
A strand of correspondence opened up on Twitter in the impromptu way which Twitter encourages. Ron Friedmann@ronfriedmann of Integreon had talked light-heartedly of a “tweet weighter” which, I suggested, could be used to discriminate between a tweeter’s valuable thoughts on e-discovery and his ruminations on his football team, mistress or illnesses. Craig Carpenter@craigrcarpenter of Recommind popped into the correspondence, and I suggested that Recommind ought to run with the idea. I wanted a cut, I said, for “turning Ron’s stroke of genius into a marketable idea and pitching it to a major player in search”. Read the rest of this entry »
Every writer aspires to have his work described as “interesting and funny”, particularly if it is simultaneously accepted as dealing seriously with weighty matters. The aim is to get the ediscovery messages past the hold music and encourage people to listen to them.
One is always grateful, of course, when other commentators pick up on one’s articles and pass them on to a wider audience. I follow up incoming links to my blog posts, mainly to make sure that I can reply if someone expresses disagreement with something I have written.
Following one such link last night, I came upon the following heading on Gabe’s Guide:
Chris Dale Promises to be Twice as Exciting as the Hold Music From Your Cable/Cellphone Company
What have I ever done to Gabe to warrant that? My last reference to him was nice enough, giving him a link on the strength of a mutual interest in the depth of snow on tables. He redeemed himself, fortunately, by his ensuing reference to the post to which he refers:
Interesting and funny post about Anacomp’s renewed focus on e-discovery from Chris Dale: Read the rest of this entry »
I drew attention recently to an article on outsourcing from a law firm perspective, written by George Rudoy on 1 December on the Georgetown Law site and called To Insource or to Outsource. I suggested that it was worth reading, not simply because of George Rudoy’s position (he is Director of Global Practice Technology and Information Services at Sherman and Sterling LLP) but also because of his long-standing role in education on a discovery matters. The article focused on the factors to be weighed in deciding what work to handle in house and what to send out and, more specifically, on the technology, strategy, process and skills needed to handle each new case appropriately.
I am a relatively recent convert to Twitter and am hooked on a number of levels. These are primarily business-driven, in the hard-nosed sense that I acquire information from others and disseminate things of my own – the publication of a new article, for example – in seconds.
My apologies to those of delicate sensibilities who might take this amiss. It is, I accept, insensitive of me to do this to you at the beginning of an article. There is no choice, I am afraid – I must return to the Ofsted “stuck in the photocopier” story. Did you think I was referring to my apparently uncouth title? If you visit an Anglo-Saxon site you must expect some Anglo-Saxon language.
My heading made itself, anyway. Craig Ball is the well-known US e-discovery consultant and fearsome commentator, a Special Master and a Forensic Examiner. He and I are allies in the battle on both sides of the Atlantic to increase understanding of the rules, and of the technology available to aid compliance with the rules. Ed Balls is the egregious Children’s Minister whose intemperate dismissal of Sharon Shoesmith, Director of Children’s Services at Haringey Council, gave rise to the proceedings in which the “stuck in the photocopier” excuse was raised. Ofsted is the Office for Standards in Education, a party (along with Haringey and Ed Balls) to Shoesmith’s application for judicial review of the decision to dismiss her, and the outfit whose capacious photocopier was the alleged hiding place for 2000 missing pages. Balls-up is a kind way of referring to the daily conduct of entities like Ofsted, as well as to the failure of the long-term mission implicit in its name – educational standards have plummeted in the last decade, and Ofsted’s spineless incompetence is partly to blame. Read the rest of this entry »
The friendly rivalry which exists between US and UK e-disclosure experts and commentators goes beyond questions like “Who can produce the most ludicrous excuse for non-compliance with the rules?”
Over the Christmas break, Gabe Acevedo of Gabe’s Guide to the e-Discovery Universe published a photograph of the table outside his window, using the depth of snow on it as an index of the overnight fall. We may not quite have matched that depth last night, but we are catching up:
This morning’s weather is a severe test of resolution for one who likes to work at an open window:
Transport is something of a problem round here just now. If all else fails, these trusty steeds are a couple of minutes away:
Port Meadow is a dusty plain in summer and a lake in winter. Today it is a snowy waste land:
Normal service, in the form of words rather than pictures, will be resumed shortly.
Anacomp has sold its MVS Division to DecisionOne in order to focus on eDiscovery with its document review application CaseLogistix and the services which go with it. 2010 should be the right year to concentrate on eDiscovery
You would probably expect me to be an advocate of specialisation, and of sticking to what you know about. What do you do?, people ask. I am involved in a small sub-set of the procedural requirements for civil litigation, I say. They yawn. There’s more, I say. I know about a specific aspect of the use of technology for information retrieval and review. They look around for someone else to talk to. No, listen, I say, the intersection between these two subjects is really interesting and important. Their head hits the table. There is only a handful of us in the world who just write and talk about it, I add, as I try to shake them awake. Gone.
I exaggerate, a little. That is, however, the way the world is going as life becomes more complicated and information-rich. If you practice law or medicine, manufacture things, teach or join the military, the trend is towards finding something you are good at and which people want to buy, and doing it well. There are exceptions – people or businesses who find skills or niches which complement what they do already or to which they can bring a team and a process which they have developed in their main business. The word consolidation can imply two opposite ideas – adding complementary business areas or bringing your main fire-power to bear on one target. Read the rest of this entry »
There are parallels between the reaction to terror attacks and other threats and the handling of e-disclosure for litigation. Collections of masses of data become not merely a substitute for information but places to lose it, and the real objective is missed. The value of thinking gets lost in the mechanics of data collection.
I am not averse, as you will have noticed, to drawing parallels between those who govern us and are responsible for our security and welfare, and many of those who give disclosure of documents. An often obsessive regard for rule and regulation is unmatched by any great application of thought, and data is collected without considerations of expense or inconvenience or with any regard for how it might best be used as information. The collection of the data can become an alternative to the real objective, and the availability of technology often becomes the driver – since we can now collect so much more data, the collection itself becomes the objective, obscuring the actual reason why the data was required in the first place. Quite quickly, the data becomes not a source of information but a substitute for it or, even worse, the place where it is buried.
In the context of e-disclosure for litigation, I am as keen as anyone (and perhaps keener than most) on both the rules and the use of technology. I take care, however, to emphasise that both are subordinate to the objective of achieving justice. The Civil Procedure Rules begin with the overriding objective, whose function is expressed in its name; it overrides everything else. The fact that we have technology capable of handling vast volumes of data does not mean that we must feed it everything we can find – that does not just cost money (and unnecessary expense is a bar to justice) but actually obscures our purpose by concealing the things which matter. My mantra here is that the most important technology lies between our ears, and that both the obsessive imposition of the rules and an excessive reliance on technology causes disengagement of the brain and the missing of the point. Read the rest of this entry »
Another side-effect of the Earles judgment will be a debate as to what the law of preservation and spoliation actually is in England and Wales. The focus will be on deciding at what point a party might reasonably have anticipated litigation.
My e-Disclosure predictions for 2010 are up on the website of the Society for Computers and Law. I have not checked back to my previous years’ SCL predictions, but I think that this batch have much more, and much better-grounded, optimism in them than was the case in previous years.
I will come back in a moment to my own ambitions for 2010, but it is worth first having a quick review of 2009. I wrote about 250 blog posts during the year, bringing the total to 489. There is no easy way of calculating the word-count, but that would add up to a fair-sized book. I was a speaker, panelist or chairman at 12 public conferences in 2009 and attended others. Venues included the US more than once, Brussels, Sydney and Singapore as well as the UK. I got involved in a couple of cases at a strategy level (that has not been the priority for the last couple of years). The rest of the time was spent in meetings or talking about e-Discovery / e-Disclosure in restaurants or bars. Read the rest of this entry »
Recent comments from readers cover the Gartner report on the litigation software market, the state of play in Hong Kong, and the bright light which has suddenly been shone on the need for government departments to approach electronic disclosure in the same way as a large law firm or company would approach it.
From time to time a reader drops me a line suggesting that something I have said is ambiguous or unclear, or that I have left something out. The omissions are often deliberate – not by way of censorship, but because I am anxious both that I should get to the end of writing the post and that you should finish reading it. These signs that people are bothered enough to write in are extremely welcome. I had three last week, and they are all worth passing on. Read the rest of this entry »
The article on E-Disclosure in today’s Times E-disclosure: how good is your filing system? by Grania Langdon-Down leads with the extraordinary “lost in the photocopier” excuse given by Ofsted as they gave late disclosure of 2,000 pages of documents in Sharon Shoesmith’s judicial review case.
I was interviewed for the article some time ago when the lead subject was HHJ Simon Brown QC’s judgment in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009). I wrote about the Ofsted shambles on Tuesday (The Baby P case may be the disclosure story of the year) and Grania Langdon-Down rang me 20 minutes later, without having seen my post but having reached the same conclusion as to the significance of the Ofsted story. Read the rest of this entry »
Gartner predicts an eDiscovery software market worth $1.2 billion in 2010. More than 10% of that will be outside the US. Software suppliers may be ready to run with this, but where are the skilled people?
Gartner’s report of 16 December E-Discovery Software Marketplace is Set to Continue High-Growth Pace has inevitably interested the Twitterati today. Picture Shackleton glimpsing the South Georgia whaling station after his epic journey from Elephant Island; imagine a French Legionnaire seeing an oasis, a besieged wagon train catching the sound of the 7th Cavalry bugle or the defenders of Lucknow hearing Campbell’s relief column battling to lift the siege (I could go on for pages like this, but you get the picture – the end appears to be in sight).
Gartner foresees that worldwide eDiscovery software revenues will reach $1.2 billion in 2010, an increase of 23% over 2009. They point to “unplanned events” such as “litigation regarding bribery and corruption, foreign corrupt practices, securities and financial fraud, government contracting abuses, and healthcare fraud” as the main drivers for the growth which will, they say, bring market and technology consolidation, expansion of product and services portfolios and new customer bases. I have not read the report itself, but one can probably take it for granted that these conclusions are underpinned by Gartner’s usual research and analysis. Read the rest of this entry »
If a supplier asked me what to do if it received unsolicited praise from a respected source, I would tell them to stick it up on their web site. What is the proper reaction when someone says nice things about me?
My own shy and retiring nature is at odds with my role as cheer-leader for the e-Disclosure / eDiscovery industry and its players. This very English reserve extends to my own articles: Google alerts for, say “eDiscovery”, pick them up, sometimes within minutes, but I have usually by then moved on to something else. I see the heading and think “that looks interesting”, only to realise that it is my own. It is, of course, unsurprising that I should be interested in the topic about which I write several thousand words a week, but I ought to be able to recognise my own articles.
An alert turned up a few days ago about a blog: “… incisive and trenchant showing a penetration to the heart of a subject with clear, sharp, and vigorous expression”. Wow, I thought. I wouldn’t mind that as my epitaph – only to discover that the extract was in fact about me. Read the rest of this entry »
The Legal Technology Awards list is out. The number of categories, providers and products may seem bewildering, but their web sites give a good idea of what they do. Follow some links and see what maps to the problems which your firm or company faces.
The Legal Technology Awards come in two waves, the juried awards (broadly for individuals, law firm departments, inspired uses of technology and so on) and the vendor categories which are voted for by those who use them. There are about 33 categories and up to three awards in each of the vendor categories. I will not list them all because Monica Bay has already done that here for the juried awards and here for the vendor awards. Read the rest of this entry »
Two of the points which caught Katey Wood’s eye are of particular interest. One is the session in which Deborah Baron of Autonomy interviewed Karla Wehbe of Bechtel. My article had made the point that client case studies are only interesting if they recount triumph over difficulties. This one seems to have done just that, with sceptical external lawyers now apparently onside and (a much overlooked benefit of in-house control) a proportion of reviewed documents now reusable. My spies tell me that this session was well received – not surprising, perhaps, given the article’s conclusion about “the shifting of roles between e-discovery vendors, service providers, general counsel and law firms as technology moves in-house”.
The other point of interest springs from Katey Wood’s account of the session about collection of international ESI, whose speakers included the well-regarded Denise Backhouse of Morgan Lewis. The sentence about the EU’s fundamental human right to privacy being “literally a foreign concept to those of us accustomed to living under the Patriot Act” is a good way of illustrating how much there is to do to convey to US lawyers that language is not the only thing which is foreign once you cross the Atlantic. Privacy laws and data protection need more than a check-list, as the article says. It would be a good start, however, if the subject did at least appear on the check-lists of those who need to collect data from Europe.
I have yet to see a report about the large judges’ panel at this conference. I will pass it on when I find out what was covered.
Litigation support provider Legal Inc has now published the fifth in the series of podcasts which I recorded with Lisa Burton. This one covers the software and systems available in the market. The series can be found here.
Legal Inc has also published a briefing paper which I wrote called Earles: Focusing the mind on edisclosure obligations about the implications of Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile). The message is in the last few words – before asserting that finding and handling electronic documents is too expensive, the lawyers need to find out what the costs will be.
It begins to look as if the Baby P case will beat even Earles v Barclays Bank in terms of its long-term influence on disclosure, not least for the likely focus on individual failings. Is this cock-up or conspiracy? Why were documents being photocopied anyway? How about a forensic examination of Ofsted’s computers, even at this late stage?
There are so many discovery cases in the US that there is usually a “Top 10″ list, identifying those which were the most important. In the UK, only one or two cases will reach prominence in any year. Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) was a relatively straightforward commercial case in which the defendant bank failed to produce documents relevant to the central issue. The disclosure point centred around an unsupported contention that it was disproportionate to search for the documents in question. The judge punished them in costs but expressly ruled out ill intent as a motive.
The Baby P case adds several dimensions – a political element, late disclosure of a significant quantity of documents, a formal report apparently rewritten to improve a case, an implausible explanation for the deficiencies, and now the suggestion that the threat of litigation was met with a memo urging the destruction of certain documents. The combination of political interference, apparent bad faith and inherent incompetence makes for a story with the full force of the best (that is, the worst) of the US ones. Almost everyone involved, apart from the lawyers, is inherently dislikeable individually and as a class, but that must not distract from the messages about justice, not least because justice was the first victim here from the moment the original story broke. Read the rest of this entry »
The Irish Law Reform Commission has just issued a consultation paper on Documentary and Electronic Evidence. At 313 pages, it is not going to be a quick read and I have done no more than skim it so far.
Its ambit is extremely wide, embracing civil and criminal proceedings, the definition of a document, the rules of evidence, public records, business books and documents, admissibility and authentication. It sweeps up on the way subjects like retention of documents and anticipated legal proceedings, money-laundering, e-signatures and cross-jurisdictional issues, and does so by reference to a variety of foreign laws, rules and practices as well as the existing domestic framework.
It looks learned and authoritative without being dull, and I will go through it in due course. You may like to see it now. I have a feeling that Ireland will be faster off the mark than Scotland (see Scottish Civil Costs Review – a missed opportunity) in embracing electronic disclosure in civil proceedings. If so, I would be keen to be involved.
A Tweet earlier this week asks “Weekly LPO articles in the UK?” which, extended from its native (and necessarily abbreviated) Tweet-speak, means “Are we seeing at least one article a week about legal process outsourcing in the UK?”
The question was triggered by an article in Legal Week headed Pass it on which looks at the growth of interest in outsourcing. What is being passed on (thus giving the article its title) is some part of a legal process which cannot be done cost-effectively by the law firm with conduct of the matter or by the client directly. The article covers more than the litigation work which is the main focus of my interest. It also embraces more than sending the work beyond the seas, pointing out (as I have more than once) that the principles of outsourcing apply to any task which can be done more cost-effectively (which may also mean “more cheaply”) in other hands; those hands may be round the corner, at least when compared with Mumbai. Read the rest of this entry »
A new website for local government lawyers has appeared. Given the very wide range of legal issues which affect local authorities, it is perhaps surprising that we have not seen one before. Local authority insulation from the real world will not help them in the civil courts.
I came across the site Local Government Lawyer because it republished an article of mine about Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009) with the title The cost of non-compliance. Everything said in that judgment about large organisations, such as the defendant bank in that case, applies equally to litigation brought by or against local authorities – they deal with many people, have a host of statutory powers and duties which generate a lot of documents, and a large internal client base which differs from a bank’s only in that the background and experience of the people involved insulates them from the rigours of the commercial world. Read the rest of this entry »
John Craske, Head of Business IT at Dundas & Wilson LLP has contributed a guest article to the Orange Rag which hints at disappointment in the Scottish Civil Courts Review.
I wrote briefly about the Report of the Scottish Civil Courts Review on 7 October, shortly after its publication (see Scottish Civil Courts Review), and promised further comment in due course. I drafted an article about one aspect which interested me – the role of the courts in mediation, on which the Report and I come down on the same side in what has become known as the Woolf v Genn debate – but somehow never quite got back to it.
This was, I think, because there was disappointingly little in the Report about either the use of court technology or about electronic discovery. The report acknowledged the need for better case management, but my overriding feeling, without reading the chunky second part in detail, was that technology, whether of courts or in the hands of parties, had been ducked, with a few laudable statements as to how important it might all prove one day. Read the rest of this entry »
Minimizing risks, costs and challenges is the title of the IQPC eDiscovery conference taking place in New York from 7 to 9 December 2009. I will not be there, but the agenda offers more opportunities than its title suggests.
I would have gone, for example, to the Judicial Perspectives panel which Patrick Burke of Guidance Software is moderating, with no fewer than six US Magistrate Judges. At the top of the six bullet points which form the agenda is Sedona Cooperation Proclamation – should lawyers cooperate with each other? It would be interesting, would it not, to get a glimpse now of the six hot topics for the agendas for, say, December 2012 or (which is more feasible) to look at old topic listings and compare and contrast them with today’s. When did “co-operation” first make an appearance on the agendas? Patrick is good at spotting what is coming next and, if my own experience on his panels is a guide, will make good use of his army of panellists. Read the rest of this entry »
As a proponent of video as a means of conveying messages, it is remiss of me not to have drawn your attention to one which features His Honour Judge Simon Brown QC and me. It was made by Kina Kim of PivotalDiscovery.com at the Masters conference and is included in the ever-growing list of short videos which PivotalDiscovery.com is collecting. You can see it on the PivotalDiscovery site or on YouTube.
There is no room for artifice in a Kina Kim production. This is the second one I have done for her (see Big Reception for Marean-Dale video) and the approach this time was the same as at ILTA. With little warning and no time for preparation, you are hauled off to a corner and away you go. It makes for spontaneity, if nothing else, and is infinitely preferable to the painful preparations which one must make if given notice. Read the rest of this entry »
Outsourcing part of the disclosure / discovery process has suddenly attracted attention in the UK. Some think that this is due to the instincts in common between lawyers and the poor old lemmings, who are invoked as role models whenever more than two people or organisations move in the same direction simultaneously.
I am not sure that this correctly describes the motivation. It seems unlikely that the widely-publicised moves by Pinsent Masons and Simmons & Simmons are solely responsible for an increased interest in the idea that some work can be done just as well but much more cheaply by others. I suspect that many firms have been considering the possibility of sending out such work to India or South Africa for some time, and that they are influenced by wider matters than the example of two particular firms. Read the rest of this entry »
How many judges do you know who might write a PhD thesis with the title Technology for Justice: How Information Technology Can Support Judicial Reform, discuss it on her blog, and promise to inform you of its publication by Twitter. Not many, I suspect.
Although I have referred multiple times to the few, but important, cases on electronic disclosure of the last few months, I do not have them neatly summarised on a single page.
Herbert Smith has now done that concisely and clearly in its Litigation e-bulletin of 30 November. Headed Electronic disclosure – ignore rules at your peril, it pulls out the key lessons from Earles, Digicel, Hedrich and Abela in a form which the busiest lawyer can absorb and in a way which should have many of them reaching for the rule book (and then for the telephone to make contact with a litigation support supplier who might help them with that case which, they now realise, they are about to screw up).
Herbert Smith is a mighty player in UK litigation, and it could be tempting to assume that the cases to which they refer affect only the biggest litigation and the largest firms. One of them, Digicel, was indeed a big case; Earles and Abela were fairly ordinary; Hedrich involved a small High Street firm. The rules apply to all litigation. Whether your case requires you and your opponents to give electronic disclosure will turn on more than just the size of the claim. Before you end up re-doing disclosure (Digicel), losing an application for specific disclosure (Abela), being deprived of half your costs (Earles), or having to go all the way to the Court of Appeal to beat off a wasted costs application (Hedrich), it seems worth a few moments at least to find out what the disclosure rules and the practice direction to Part 31 CPR actually require.
The UK Information Commissioner’s Office (ICO) has produced a guide in plain English which aims to make it easier for the non-expert to understand what is involved. That is all to the good, but this is not one of these situations where tout comprendre c’est tout pardonner.
I thought you wouldn’t mind a bit of French in the circumstances. Those trying to get data from France (or anywhere else in the EU, but France more than most) for use in US proceedings rarely forgive what they learn about the restrictive nature of EU data protection, even when they understand it – perhaps especially when they understand it. Indeed, the expression “Pardon my French”, used by the English to exculpate themselves after using some vile swear word, might well be helpful to those who have just discovered what those implications are – the language which results is often unsuitable for what used to be called “mixed company”. Read the rest of this entry »
Although I do my own summaries of the conferences I take part in, it is more interesting in some ways to see what other people take away from them. A succinct summary from an interested party who was present as a delegate picks out what came across as the important strands – if you are organsing and chairing it, the whole thing is important.
Nick Patience from the independent technology-industry analyst company The 451 Group has done a post called e-Discovery conference thoughts in which he highlights a few points from the recent Thomson Reuters e-Disclosure Forum which struck him as being interesting, important or both. I would in turn pick out a couple of those for closer focus. Read the rest of this entry »
What is the seating etiquette if you go to a wedding knowing both parties? Do you have to make an invidious choice between one side of the church and the other? Perhaps you sit in the aisle or hang from the rafters.
I was set musing on this by the announcement that two of the sponsors of the e-Disclosure Information Project, Anacomp and 7Safe, have announced a new strategic alliance. Under the terms of the agreement, 7Safe provide the hosted version of Anacomp’s review application CaseLogistix, and will serve as a preferred provider of data processing and other e-disclosure services in the UK as an Anacomp Connected Partner Program Certified Services Provider. The press releases (7Safe’s here and Anacomp’s here) are necessarily in similar terms. Read the rest of this entry »
You may just have been indulging my paternal pride, but quite a lot of people seemed to like the first single released by The Phoenix Fall, the Leeds-based Indie band whose drummer is my son Charlie Dale.
The second single, Tearing Me Apart, was released this week when the Phoenix Fall headlined a gig at The Library in Leeds. My wife and I were there, used by now to being the oldest in the room by 30 years or so. Watch the video here:
Wearing my marketing hat, full marks to Ashley Karrell who made the video. Any of you minded to take up my suggestion that YouTube videos are a good way to promote business may care to get in touch with him. And you know where to look for a band for your Christmas parties.
I was able to use the title of the first single, What Really Matters to Me as an object lesson in what e-Disclosure / eDiscovery is all about. It tied in neatly with something HHJ Simon Brown QC once said about the purpose of disclosure:
What I want to know is this: what is the case about? Which of the pleaded issues really matter in getting to the heart of the dispute? Can we split the case up and limit disclosure to the subjects which matter, or which matter most?
Even I am pushed to find a useful e-Disclosure parallel for a title like Tearing Me Apart, although if you try explaining to Senior Master Whitaker that the Part 31.6 CPR definition of a “disclosable document” is the same as the pre-1999 concept of a “relevant document” you might fear momentarily that being torn apart would be a relatively painless fate.
Anyway, there is no point in having an audience which stretches from Melbourne to Manhattan and not use it to support the band. After all, they might support me one day.
On which subject, you can download Tearing Me Apart from Amazon or iTunes.
Planning is in hand for IQPC’s May 2010 E-Disclosure conference. Good conferences like this provide elements which other forms of information delivery lack, not least the opportunity to interact with those whose data we write and talk about.
Having got shot of my last urgent deadline a few minutes before midnight on Monday, you would think I deserved a day or two in peace to catch up, but no – duty calls. Just to show how tough life is here, I was forced to spend part of yesterday in a smart restaurant in South Kensington with three agreeable young ladies.
The ladies in question were the team from IQPC responsible for planning IQPC’s Information Retention and E-Disclosure Management Conference for next May – Vanessa Lovatt, Katie Judd and Sarah Johnson. I enjoyed all the conferences I did last year (yes, I have lost count, too) but IQPC was simultaneously the most important and the most enjoyable. It is the biggest one on home territory, it attracts a corporate audience and, last year, it was the venue for the UK-US judicial panel with Guidance Software (since repeated in Washington), and for the performance of the mock e-Disclosure application which I wrote. I am on its advisory board and so get involved in its forward planning – we actually started this at IQPC’s Brussels conference in October but, since that was at 2.30 in the morning and none of us took any notes, it seemed prudent to have a slightly more formal session. Read the rest of this entry »
Read KPMG’s new survey on corporate readiness for litigation and then read the judgment in Earles v Barclays Bank. You may spot a connection.
KPMG have published the results of the survey which Alex Dunstan-Lee previewed for us at IQPC’s Brussels conference in October. One of my reports of that event summarised what Alex said. Another of my articles ended thus:
Perhaps the biggest paradox, however, lies in the disparity between the number of people who accept that information management is important and the number who are actually doing anything about it. Coming to a conference like this would be a good start.
That is more or less the theme of KPMG’s report. It is called Is the legal department ready? Managing electronic data for litigation and regulatory readiness. Read the rest of this entry »
On 20 November 2009, Australia’s e.law completed its acquisition of the business assets of CCH Workflow Solutions from Wolters Kluwer.
The news of the acquisition broke whilst I was between conferences and although I heard from both Allison Stanfield at e.law and from Scott Gillard at CCH Workflow Solutions, I have not really had the chance to catch up with the full implications for the merged business, for their clients and for the Australian e-Discovery market. Read the rest of this entry »
The general reaction to ALM’s Virtual LegalTech by its participants and delegates seems generally to be positive. If, as Charles Christian said on Twitter afterwards, it had a 1990s feel to it, well, that can doubtless be improved upon in future years. Christian is right also to say that opportunities were missed to make use of multimedia in the presentations, particularly as to the technology itself. Some of the ideas which I have scouted on this site for video presentations of technology solutions might easily have been slotted into the framework. This is all capable of remedy in future presentations. ALM bit off quite enough for a first go at this. Read the rest of this entry »
The second session at the Thomson Reuters Fifth Annual e-Disclosure Forum in London on 13 November was called Parallel and cross-border developments in handling electronically stored information. I was the moderator, although if Air Miles were the qualification for talking about international subjects, Browning Marean of DLA outstrips even me by a wide margin.
The panel comprised Senior Master Whitaker, Mark Surguy of Pinsent Masons in Birmingham, and Josh Ellis, Chief Information Officer at the Serious Fraud Office. I suspect that Master Whitaker has a wider range of knowledge on international case management matters than any other judge in the world; I opened by saying that, in the last six weeks, I have been in Brussels, Washington, Singapore, and in front of the UK Civil Procedure Rule Committee and the only other person present on all these occasions was Master Whitaker. In addition he is, as Senior Master, the channel through which requests under the Hague Convention are made. Mark Surguy was the only practicing commercial lawyer from the UK at LegalTech in New York this year. Josh Ellis, quite apart from his present role at the SFO, was responsible for international collections at PricewaterhouseCoopers for years and was thus able to bring a practical and hands on dimension to the discussion. Read the rest of this entry »
Virtual LegalTech looks quite fun so far. It has an exhibit hall, an auditorium and a resource centre amongst other things, and there are people to chat to (Peggy Wechsler of ILTA was on the phone when I dropped by but I will go back later).
It is the only conference at which I am allowed to smoke – even during my own session, which is later on – 7.00pm GMT – when Michelle Mahoney, George Rudoy, Christopher Byrne and I can be heard on the subject of International E-Discovery. One or two of us will there to answer questions afterwards.
Being virtual, it can be attended from my desk, which is a distinct plus.
I have one tip for those attending – use the top bar for navigation between the areas and do not keep going back to the home page. One thing you don’t get at real LegalTech, mercifully, is Henry Dicker standing in the lobby saying “Hey! You made it!” every time you pass by. Henry is a nice chap, but there will be queue of people ready to murder him by the end of the day without that tip, since a video of him strikes up every time you reach the virtual equivalent of the lobby. So the only thing which jars about Virtual LegalTech is the one thing which is not a facsimile of real life. There is a moral there somewhere.
The second point is summarised as Lawyers can no longer plead ignorance about e-discovery technology. The problem is actually more fundamental than ignorance of the technology – getting to know the rules and the case-law would be a good start, at least to the extent of having a mental flag which pops up when the case in hand has any volume of electronic documents. As the article says, there are plenty of good solutions providers out there, easily found and ready to help – if it is negligence not to know the rules, it is no less so to be unaware of the solutions. I prefer the more positive view that there is work to be won by alliances with someone who can do well the parts you cannot do cost-effectively for yourself. Read the rest of this entry »
Every interest group now has a day in the calendar dedicated to raising awareness about it. It used to be just Christmas, Easter and various saints. Then we got “Mothers Day”, and after that a flood. If there is not a Knit-your-own-organic-whale day, there surely soon will be.
19 November seems to be international cross-border webinar day, with at least three broadcasts today. Read the rest of this entry »
Regular readers will know that I find Equivio’s value proposition to be extremely attractive, notwithstanding that the user – the lawyer or his client – does not always get to see it directly. That is because Equivio’s products are bought by service providers and software developers and incorporated seamlessly into their own products. The clients might ask for Equivio’s near-deduping and e-mailing thread processes to be used, and see only the result, not the legs working. Alternatively, the processes may be so closely integrated into the review application that they appear as just another function of that application.
Equivio have followed their applications for identifying and handling near-duplicates and e-mail threads with a product called Equivio->Relevance. I have mentioned it before and I am not going to say much about it here, because I am writing a white paper about it and do not want to steal my own thunder. Put as briefly as possible, Equivio->Relevance hands a small batch of documents to a human reviewer who marks them for relevance. The next batch takes account of the relevance decisions already made, and is further refined by the human reviewer’s input into them. This process continues until the application announces that it “knows” enough to mark the remaining documents (that is, the vast majority) in accordance with the decisions made about the samples. Read the rest of this entry »
I am very pleased to welcome electronic discovery software company Stratify as a sponsor of the e-Disclosure Information Project. Their addition to the list of sponsors coincides with the opening of their London office and data centre, as well as Stephen Whetstone’s welcome appearance as a panellist at the Thomson Reuters conference last week.
Stratify is a subsidiary of Iron Mountain, Inc., the information protection and storage services giant. Iron Mountain has long-standing facilities and clients in the UK and EU (see the Iron Mountain UK site) as well as elsewhere in the world. There is no technical reason why the data must be close at hand, but EU clients want not only to have personal contact with their discovery suppliers but must be able to house their data within the EU for data protection and privacy reasons. Iron Mountain’s storage and data security infrastructure and experience will be comforting factors. The Iron Mountain press release sets out the business proposition for potential clients. Read the rest of this entry »
The first session at the Thomson Reuters e-Disclosure Conference in London last week was called The Continuing Challenges of Preservation, Collection and Exchange. George Socha’s panel included a solicitor, a software provider and a judge – Matthew Davis of Lovells, Stephen Whetstone of Stratify and HHJ Simon Brown QC.
Judge Brown said that the court is interested in the material, and only the material, needed for a decision. The point at issue in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009), on which he recently gave judgment, was not a difficult one. The judge is the end user of the disclosure process and needs contemporaneous documents. He had been given many documents which were not relevant to the issues which he had to decide, but not the ones which actually mattered. Witness statements drawn up by lawyers are often not worth the paper they are written on relative to the contemporaneous documents, in this case the records of telephone conversations. Read the rest of this entry »
The Thomson Reuters Fifth eDisclosure Forum was sponsored by Autonomy, Stratify and Legastat and, as before, the co-chairs were Browning Marean, George Socha and me. I enjoyed it and, unless they were just being polite, the audience seemed to think it a valuable day. The session reports will follow; this summary gives you the flavour of the day and suggests how to follow it up.
Asked why we had left the key subject of search until the last session, I said that we were sufficiently confident of keeping most of the audience until the end that we wanted to go out on a high. So it proved, even on a wet and windy Friday the 13th several miles east of the back end of beyond at Canary Wharf. This is the one conference which the co-chairs get to design from the beginning, and I do not recall that we paid much attention to the sequence. All the topics were significant. Read the rest of this entry »
I went to listen to Senior Master Whitaker speak last night to the London Solicitors Litigation Association about electronic disclosure. I was not expecting to hear much that was new to me – I have heard him speak five times in four countries in three continents in the last six weeks, so the anticipation of novelty was not why I flogged up to London. I go to anything I hear about where lawyers assemble with an interest in electronic disclosure.
It has to be said that, for a group which self-selected on this basis, the level of basic knowledge was not high. Although most claimed to know the difference between the pre-1999 Peruvian Guano test of “relevance” and the CPR definition of a disclosable document (one which is supportive of or adverse to the case of the giver or any other party), few knew of the co-operation and discussion requirements in section 2A of the Practice Direction to Part 31 CPR. Fewer had heard of Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2008] EWHC 2522 (Ch) (23 October 2008)
or last month’s judgment in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009) or knew of Lord Justice Jacobs’ thoughtful encapsulation of the problems in Nichia Corp v Argos Ltd [2007] EWCA Civ 741 (19 July 2007). Read the rest of this entry »
An article in Legal Week reports that law firms are aware that existing methods of charging for work must change but says that they are wary of legal process outsourcing as the answer. The only mistake is not to weigh up the options – before the clients do it for you.
In case you have time only to read the first paragraph or two of this, let me pass on a quotation which appears at the end of Legal Week’s article Partners seek new models but wary of LPOs. It comes from Berwin Leighton Paisner partner Vanessa Barnett who is reported as saying:
Long gone are the days of paying for all types of work by the hour and all the hours being under the same roof regardless of the nature of the task. There will only be one ‘profession’ left doing that. Read the rest of this entry »
The latest edition of Charles Christian’s American Legal Technology Insider has been released, bringing its usual colour to the bare recitals one gets in press releases.
Although Charles Christian and I may appear to have a fair amount in common – both English, both lawyers who write about legal technology, both willing to be acerbic where that seems justified (“edgy” is the word somebody used of me this week, whereas Charles seems to favour “grumpy and opinionated” as his own label) – we are in fact different people with different subject areas. I say this because a press release this week credited me with being the editor of the American Legal Technology Insider and the Orange Rag blog.
We each got our respective rebuttals in within seconds. Charles was concerned either that he had inadvertently agreed to sell his stable (in which case he wanted a cheque by return) or that he had unwittingly committed himself to making a speech about the minutiae of the Practice Direction to Part 31 CPR; I was equally concerned that I might find myself expected to discuss practice management systems, accounts systems or digital dictation.
The Masters Conference yesterday published the list of those in its Cabinet. New members include Shawnna Childress of LECG and me – if one is going to join a committee, then one which includes the co-founder of Women in eDiscovery and joint author of eDiscovery Plain and Simple is the one to be on.
Conference organisers are increasingly involving their participants and others in shaping the strategy and agenda for forthcoming events – I am spending a lot of of my time doing this, formally or informally and, whilst it can be hard work, I prefer this to simply poling up and speaking. At a simple level, this does at least ensure that I don’t find my subject overlapping with the one which the audience has just heard, as happened to me once. Read the rest of this entry »
FTI Consulting are presenting a webinar on structured data on Thursday 19 November at 1300 GMT. The subject is perceived by some as too difficult to talk about, but it cannot be ignored.
Elephants have provided a recurring theme throughout this blog. They are large, hard to get your arms around and difficult to describe to someone who is not familiar with them – which makes them the perfect model for the structured databases in which a very high proportion of company information resides.
E-mail, and user files like Word documents and Excel spreadsheets, spring readily to the mind of a lawyer required to disclose “documents”. Sources such as HR and financial databases tend to be overlooked, largely because they usually bear little relationship to the conventional idea of a “document”. Read the rest of this entry »
Litigation services provider Legal Inc has published the first two in a series of ten podcasts about electronic disclosure. They take the form of a dialogue between Legal Inc director Lisa Burton and me, and will between them provide a comprehensive overview of the rules, the practice direction to Part 31 CPR, and cases such as Digicel and Abela. We also discuss practical things such as preparation for case management conferences, the use of external suppliers, best practices, problem areas, global trends and pending developments. Read the rest of this entry »
Although the survey was of US companies only, the results are universal – this is not about FRCP or sanctions but about the expectation that in-house legal teams will achieve the same or more with lower budgets and fewer resources, including the spend on outside lawyers. This is happening everywhere and the conclusions are as valid in countries beyond the US. We have gone way beyond shaving down charging rates and other minor economies, and into fundamental reassessments of what is really necessary to achieve the objective.
The answers inevitably lie in a mixture of process, people and technology. The perfect model, viewed in the abstract, is that companies reserve their external lawyers for the things which they do supremely well, and keep control of as much as possible of the rest by a mixture of in-house teams and technology and by direct relationships with providers of software and services.
The primary target is to cut the cost of review by minimising the amount of data sent to the lawyers – there is much more money to be saved by reducing the lawyer hours than by trimming the charging rates. The newer generations of clustering and visualisation tools are not merely more easily understood and accurate, but deliver results which can be audited and, if necessary, re-run with different parameters. The word “repeatable” means more than being able to validate the results – if the first-pass processes are routinely done in-house, then conclusions reached last time can be re-used when similar ground has to be covered for a different case.
I have written a fair amount about this shift – lawyers must either embrace it and learn to fit into the clients’ processes, or do without the work. It will be good to have some statistical backing for what is known to be happening, and Ari Kaplan’s overview and analysis will, like the results themselves, be relevant beyond the US.
As you might infer from its name, the e-Disclosure Information Project set out with purely national ambitions. England and Wales is the only jurisdiction in the world to give the name e-Disclosure to the process of identifying, preserving, collecting and exchanging documents for litigation. If I had known that two years later I would be speaking in Brussels, Washington and Singapore within three weeks of each other, I would not have picked a name with so narrow a jurisdictional scope.
The wider I cast my net, the more it becomes clear that the jurisdictions which require discovery of documents (principally England and Wales, the US, Canada, Australia, Hong Kong and Singapore) have more similarities than differences in their approaches to the problems and the solutions raised by electronic documents. At one level this is obvious – all of these jurisdictions give pre-eminence to contemporaneous documents as the primary source of evidence, they have all seen a vast growth in volumes of evidence, and there are a limited number of ways in which court rules and procedures could develop to take account of mass documentation in adversarial proceedings in which justice is only accessible if it can be afforded. If you were to describe the problem to someone who, although suitably skilled and intelligent, had no knowledge of the developed law and procedures, you would end up with a solution whose essentials were broadly similar to those which obtain in the jurisdictions which I have named. Read the rest of this entry »
An article in Document Management News reports on the legal action being taken by the European Commission against the UK for gaps in the legislation required to comply with EU data protection laws. The investigation leading to the action was initiated because of failure to control a specific activity – BT’s trial of PHORM, which tracks web user habits and sends targeted advertising based on what the user is apparently interested in.
The UK usually complies slavishly with EU regulations, with civil servants accused of “gold-plating” the Commission’s requirements, adding refinements and extra burdens mainly as cynical job-creation exercises to keep them and their cohorts (and their cohorts’ descendants) in work. Take the dull little men at DEFRA (the Department for Environment, Food and Rural Affairs, historically a kind of dustbin for those not employable in any other government department) and give them a short EU regulation on, say, horse exports or slaughterhouses and they will (after much generously-rewarded labour), produce a law ten times as long and detailed, guaranteed to increase costs, close down businesses and put people out of work. Their own salaries and pensions, of course, are safe (if you search for “gold-plated” in Google, the results are divided between articles about British civil servants amplifying EU directives and articles about the pensions of those same civil servants). Read the rest of this entry »
What connects Father Brown’s deduction that a trusted old soldier had been a villain with Autonomy’s tracing of Jérôme Kerviel’s activities at Société Générale? Both stories involved not just hiding leaves in forests but making a forest in which to hide the leaves. Companies need to get a grip on their data.
The Times has been running a rather good series of supplements on matters relevant to business. Last week’s was on Corporate Fraud, and I and other e-Disclosure commentators were interviewed for an article called Finding a hidden leaf in a forest (page 5) .
The heading is a misquotation. What I actually said in my interview was “Where does a wise man hide a leaf?”. This expression was used by Lord Justice Jacob in Nichia v Argos in his discussion about mass disclosure as opposed to the consideration of documents “with some care to decide whether they should be disclosed”. His paragraph 47 says this:
“…it is the downstream costs caused by the disclosure which so often are so substantial and so pointless. It can even be said, in cases of massive disclosure, that there is a real risk that the really important documents will get overlooked. Where does a wise man hide a leaf?” Read the rest of this entry »
A large pub gathering of most of the London litigation support industry prompts some thoughts on the state of the industry and on what makes a buyer new to the market choose one supplier rather than another
If the Larder in Clerkenwell had collapsed last night, almost the whole of the UK litigation support industry would have gone with it. Bill Onwusah of Lovells, whose idea it was, thought he was being optimistic in reckoning that 25 people might turn up in response to his invitation for “an evening of convivial conversation”. As the evening began, he revised the estimate to 45. We all lost count, but the final figure was much higher than that. What probably drew in the crowds was the rider “if you can’t manage anything convivial we will settle for an evening of the usual backbiting and sniping”. Read the rest of this entry »
My excuse, if such be needed, is that there is only one of me and that the inordinate amount of time spent on aeroplanes recently cuts into the writing time. I do not, in any event, lay claim to journalistic timeliness. Besides, as I have already noted, Patrick Burke of Guidance Software has already written up Judge Facciola’s speech and the judicial panel at the Masters Conference and now we have the PosseList’s Masters Conference wrap-up. As that makes clear, they had “various reporters” at the conference which meant they could attend sessions which ran parallel to each other. Read the rest of this entry »
I wonder what was the first legal technology development reported by Charles Christian. A new design of quill pen perhaps which, coupled with a revolutionary advance in parchment development, allowed legal clerks to write on both sides of a document at once. It might have been the outsourcing of Inner Temple deed production to monks recently made redundant by the nationalisation of the monasteries, or a steam-driven calculating machine for keeping trust accounts.
His acerbic observations on the legal technology market have been pouring out apparently for ever. His audience is legal IT professionals — the people who develop, sell, buy, implement, support and manage legal IT systems within law firms and in-house legal departments. It is unlikely that any medium-to-large law firm technology purchase in the UK has taken place without reference to the Legal Technology Insider and, more recently, the Orange Rag blog. Read the rest of this entry »
I have already written about this (see Costs penalty for non-compliance with e-disclosure obligations). It is significant at several levels: unlike Digicel it is a fairly ordinary case; it is firmly grounded in authorities about evidence and not merely about disclosure or electronic disclosure; it covers the use of disproportionately expensive lawyers as well as procedural defects; perhaps most importantly, it is a case where documentary evidence would have proved immediately what it took much oral evidence to show, possibly allowing the case to be dealt with on a summary basis. The disclosure defects did actually cost time, money and court time. Read the rest of this entry »
Unintended consequences are not necessarily unforeseeable. It was wholly predictable that the pre-issue obligations of the 1999 Civil Procedure Rules would shift the battleground to the front end of the litigation, and with obvious consequences in costs. As with the notoriously hard-fought US discovery process, if the rules give a weapon to the lawyers, then their duty is to use it. Lord Woolf seems a bit miffed, but has more to contribute to the debate than his reported attacks imply.
When Stanley Baldwin retired as Prime Minister and handed over to Neville Chamberlain, he promised “not to spit on the deck nor speak to the man at the wheel”. If Lord Woolf’s only contribution to the current debate were to come down from his lair every often and attack those who follow in his footsteps, then he would do better to stay at home. He has more to offer us than that.
Woolf recently attacked lawyers, judges and the government at a meeting of the London Solicitors Litigation Association, saying that they are all to blame for the fact that we have not seen the hoped-for reduction in litigation costs. Costs have in fact risen, putting litigation beyond the reach of all but the richest. Read the rest of this entry »
After leaving Oxford, I
qualified as a solicitor in 1980.
I have worked as a consultant
and developer in litigation support since 1993.
My primary focus is on the encouragement of
e-Disclosure by working with the courts and
with suppliers to achieve a joint approach.
Posted by Editor 
