I have already drawn attention to an article by His Honour Judge Simon Brown QC in the New Law Journal called Costs management & docketed judges: are you ready for the big bang next year? which describes what is to be expected by parties to civil proceedings in respect of costs budgets. The takeaway quotation is:
The days of putting in a bill at the end of a case based on a multiple of billable hours x by £x per hour and expecting to be paid are over.
That article links in turn to an explanation by Andy Ellis, the costs lawyer who acted for NGN. Again, its title tells you all you need to know – Actual – Budget = Catastrophe.
As the Senior Costs Judge explained in his judgment, the case was dealt with under the Defamation Proceedings Costs Management Scheme.
Last in this set of links is one to a Daily Telegraph article headed Hourly billing for lawyers should end, says top judge which reports a speech by Lord Neuberger whose message is clear enough. The central point is reported thus:
[Lord Neuberger said] “Hourly billing at best leads to inefficient practices, at worst it rewards and incentivises inefficiency.”
He said it penalises those who are able to bring cases to a close quickly, adding: “It also penalises the able, those with greater professional knowledge and skill, as they will tend to work at a more efficient rate.
“In other words, hourly billing fails to reward the diligent, the efficient and the able: its focus on the cost of time, a truly movable feast, simply does not reflect the value of work.”
He said: “In practical terms, any business which bases its charges simply on costs does not deserve to succeed, or even, some might say, to survive.
Lord Woolf said something similar in his report which gave rise to the 1999 Civil Procedure Rules. This time, the nettle is to be grasped.
I am not above inventing a headline whose connection with the subject-matter is less important than its potential for attracting readers curious to know what the article has got to do with eDiscovery. In this case, the headline is an honest, if partial, summary of what lies below: metrics are the key to eDiscovery decision-making; social media is the fastest-growing source of potentially discoverable data; Magistrate Judges turn up to share their wisdom with us; monkeys appear twice, once as part of the question “who are you talking to?” and once in an echo of a recent post of mine about cross-border discovery and blocking statutes; risk mitigation is the theme which binds them all together.
I have been at Guidance Software’sCEIC 2012, a pool of civilised learning and meeting in the cultural and topographical deserts of Nevada. There have been more than 1,500 attendees here from 43 countries, with 53 exhibitors and 118 information sessions. I have been here since Saturday; the show has now closed and I am stuck here until tomorrow, giving me the first opportunity to write anything since I arrived. The rest of the time has been filled with preparing and giving my own sessions, attending excellent presentations given by others, and with parties, dinners and useful conversations by the pool.
If you want a rounded account of IQPC’s successful Information Governance and eDisclosure Summit in London this week, this is not the place to find it. I was involved in five events over the three days and spent most of the rest of the time talking to providers, judges, lawyers and in-house eDisclosure people from law firms and their clients, attending very few sessions as a result.
The nearest you will get to a narrative account can be found by looking for the #infoGovSummit hashtag on Twitter and particularly the tweets of Recommind @Recommind, Barclays’ Matt Ward @_Matthew_Ward_, and the ever-reliable Andrew Haslam @AndrewHaslam (winner of the event’s tweeting prize).
FTI Technology Panel
It began for me with a workshop led by Craig Earnshaw of FTI Technology at 8:30am on Monday morning. Our subject was When Volumes get Large: How to Keep Control of Your eDisclosure, which was kicked off with talks from Glen Greenland and Ian Smith of FTI and then taken up by a panel comprising Matthew Davis of Hogan Lovells, Jean-Bernard Schmid of the Geneva Public Prosecutor’s Office and me. No eDiscovery exercise, whether for civil litigation, or for an investigation for regulatory, criminal or internal purposes, ever ends up smaller than anticipated. What resources, of people and technology, do you bring to bear in a way which remains proportionate whilst scaling up to meet new developments? The subject was deliberately broad, and swept up a range of challenges from pure volume to time constraints to privacy and all the other wrinkles which are recurring features of exercises which are increasingly global in nature.
The most memorable moment had nothing to do with the primary subject – or perhaps it did. Craig Earnshaw asked for the most extreme example of geographical remoteness encountered by the panel. No-one sought to compete with Matt Davis’s reference to Hogan Lovells’ office in Outer Mongolia, neatly emphasising that there are no geographical limits any more.
Dinner with Nuix
A dinner hosted by Nuix on Monday night gave me another example of projects which turn out bigger than anticipated, as well as an object-lesson in the value of actually reading one’s e-mails. Read the rest of this entry »
That part of my life which involves speaking has four elements – preparation, travel, delivery and reporting. The month of May always has a full diary of events, and this year has more than usual. Of the four elements, the only one which is optional is the reporting, and it is that which I must abbreviate here. I can make a virtue out of that by summarising the themes which run through my current batch of events, reckoning that the subjects which recur at events are those which are seen as important.
I am writing this from the top floor of the Wynne / Encore hotel in Las Vegas where I have been speaking at AccessData’s User Conference. Below me lies the vast complex of casinos, conference rooms, shops, swimming pools and catering facilities which are the standard mix in this city. To my left, and temptingly close, lies McCarran airport with toy aeroplanes taking off and landing. But for the iniquitous cost of today’s flights, I would be there now, getting ready to go home less than 24 hours after arriving here (I could not come earlier because of ILTA Insight in London). As it is, I am stuck here until tomorrow – though as offices go, this one is hard to beat. Away to my right lies the Red Rock Hotel; I will be there in a few days time for Guidance Software’sCEIC. It would be a great deal cheaper, and much more productive in writing terms, to stay here for the intervening few days, but IQPC’s big Information Governance and eDisclosure Summit takes place in London next week and I must be back for that. When CEIC is over, I must get back for a CPD talk which I am giving in London.
Although I made it clear in my article Scattershot innuendo and muck that I was indifferent to the outcome of the arguments on the merits in Da Silva Moore, that is no excuse for substituting the word “Plaintiffs” for “Defendants” in the heading of an article whose entire purpose was to draw attention to the way in which one party is getting all the airtime in the commentary on the case.
Perhaps I was subconsciously proving my own point. Perhaps the most sensible conclusion is that 4.00am on a Saturday morning is not the best time to think up article headings.
I am not too bothered about being defensive on this, but if I were, I would observe that it has taken until today for a sharp-eyed reader to spot my error. The tenor of the article was clear enough.
Changing the titles of articles is a pain, because they go through into the page names, and correcting them fouls up the SEO and breaks third-party links. It seemed, nevertheless, the right thing to do on this occasion.
It has been a month since I published my last list of articles published on Google Plus and said that I would not be doing any more of them.
I speedily repented of that as the stream of interesting articles about eDiscovery and eDisclosure kept rolling by. I know of no other medium which combines each of use with reasonably good SEO. One compelling reason for continuing is that these lists, which are inevitably keyword rich, themelves index very well and if part of the aim is to spread information about eDiscovery / eDisclosure and its players, then I cannot ignore “findability”.
Bloomberg BNA has published an article by Conor Crowley which looks at both the origins and the new developments in the lawyers’ Duty of Competence in eDiscovery. It is a US article about US rules and codes of conduct. The duties apply, in their essentials, however, anywhere else and whether or not local rules impose them.
He refers, for example, to a proosed amendment to the ABA’s Model Rules of Professional Conduct which reads:
‘‘To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.’
Anyone care to argue with that as a proposition for a litigation lawyer in 2012?
How about the certification which counsel must sign when making the Joint Electronic Discovery Submission in the S.D.N.Y Pilot Programme for complex cases?
(2) Competence. Counsel certify that they are sufficiently knowledgeable in matters relating to their clients’ techno- logical systems to discuss competently issues relating to electronic discovery, or have involved someone competent to address these issues on their behalf.
I don’t think you have to be participating the Pilot, or in S.D.N.Y or in the US or in a very big case for that to be at the least sensible as a starting point for giving proper advice to a client.
So far as I can see, only two articles have been published so far to report on the defendant’s Memorandum of Law in response to the plaintiff’s motion for the recusal of Judge Peck in Da Silva Moore. That response was filed on 30 April and it is now the dawn of 5 May. K&L Gates have published a brief reference to it, with links to the Response itself and its exhibits. Legal Technology News has published a straight-up-and-down account under the heading Defendants in ‘Da Silva Moore’ Oppose Motion to Recuse Judge. That article has been re-tweeted a bit, but the rest is silence.
Where is everyone, I wonder? Every move by the plaintiffs has been passed on immediately in blog posts, often with lurid headlines, and usually at a speed which may be a credit to their authors’ reaction times. It takes me quite a long time to produce a balanced summary of things like this; perhaps it’s the balance bit which takes the time. It feels a little like watching a football match from which one team’s supporters have been barred.
It is, no doubt, a model of its kind, but it reads to English eyes as though a Daily Mail features writer has tried to parody the thesis of an aspirant lecturer at a New University. I must have nodded off when reading it, because I entirely missed the footnote which cites an article by me as evidence of the assertion that the defendants’ lawyer was pleased with the outcome of the last hearing. (Let’s just go back over that: a party to US proceedings, seeking to overturn an order, feels the need to show that the other side were pleased with the order, and relies on an article by an English commentator to “prove” that unsurprising assertion. WTF, as we say in our understated English way)
Some of the articles which we have seen have consisted largely of extracts cut-and-pasted uncritically from the Plaintiffs’ court documents, topped off, as I have said, with an eye-catching headline. Let’s try the same approach here (I already have my eye-catching headline): Read the rest of this entry »
I am inevitably interested in the ways in which ideas and information are passed to and by lawyers, since they are my target audience and I live by reaching them by whatever means come to hand. It is unsurprising that a barrister can make a video in which he or she passes on knowledge and skills – they are, after all, practiced in articulate oral expression of facts and arguments. It is good to find one who has actually made use of one form of new media, and then published it on another (his blog).
Those of us who follow Seán Jones QC of 11 Kings Bench Walk on Twitter @seanjones11kbw do so for his dry and self-deprecating humour as much as anything. He is a senior employment barrister, and if I employed anyone or was employed (neither being conditions I aspire to), he is the one I would want on my side if a dispute arose. That I reach such a conclusion entirely on the strength of a few tweets illustrates the power of social media as a marketing tool.
Seán Jones muttered something on Twitter recently about going off to make a video, and we now have the results, Witness Statements 7 Deadly Sins. How promising does this look, we ask ourselves, as we see that the video is of the talking head variety and delivered by a man who describes himself as having “a magnificent set of jowls and a grating nasal tone”. Even if this was a fair self-judgement (it is not), you would soon forget it. Read the rest of this entry »
EUObserver.com reports that EU Justice Commissioner Viviane Reding has come under fire, from the Article 29 Data Protection Working Party amongst others, for the scope of and proposed timescale for her proposed new data protection rules.
These are seen by some as a “power grab” (What? The EU seeking to grab powers?) and fundamental issues arise not only about the speed with which implementation is planned but about the constitutional propriety of the proposals. Those of us who fully expected that the 2009 Treaty of Lisbon would be abused feel vindicated by the EU Commission’s claimed right to alter fundamental laws without reference to member states.
Don’t misunderstand me here. I am all for reigning in the abusive use of what should be personal information, and Commissioner Reding is probably the right person to take on the task. If the EU is to serve any purpose at all (and its primary purpose so far as I’m concerned is to provide employment for its elected members and bureaucrats) then this is the sort of thing it should be thinking about.
The key word here, however, is “thinking”, and it would be good to see some evidence that the full consequences of the proposals have been thought through before it is dumped on member states by ambitious politicians and job-creationist bureaucrats.
In particular, one would like to see some analysis of the “savings for business” which have been claimed for the proposals. I can see that a unified set of regulations ought to be easier to navigate. The EU does not work like that, however, and every new set of regulations brings with it greater powers for arrogant officials to interfere and get in the way, whether or not any benefit results from the intervention.
Money drops from the sky at the end of every month for an EU civil servant, and none is ever dismissed for sloth or incompetence. They have no understanding of the needs of businesses and no incentive to make this work for them.
Australia, New Zealand and Hong Kong only look close together when viewed from a long way away. They all have a common law eDiscovery tradition, but it is coincidence of timing rather than any specific commonality which groups them together in this post. A group of articles has bunched together in the electronic equivalent of my in-tray (Evernote, since you ask) and it is convenient to pick them off together.
The subject headings cover the full range of current talking-points. The unambiguously named Predictive coding: what is it and how could it change the practice of law in Australia clearly aims to give this subject its due. Michelle Mahoney knows more than most on on How to best manage outsourcing eDiscovery and hosting. Browning Marean is always lucid on legal holds. Add Nuix on Integrating legal technology into your organisation and you conclude that Chilli IQ are not stinting on quality speakers. Read the rest of this entry »
The next event in which I am involved is ILTA Insight in London on 8 and 9 May. This year it runs over two days and is produced in conjunction with LegalTech, a division of ALM.
I am moderating a panel on predictive coding on 8 May. The panel members are Senior Master Whitaker, Greg Wildisen of Epiq Systems, Vince Neicho of Allen & Overy and Browning Marean of DLA Piper US.
The focus of our panel is on the use of predictive coding by lawyers and the likely reaction of the courts, under the heading Litigation and Practice Support. A second session on Day 2 will look more closely at the technical aspects on the Emerging Technologies track.
The event itself has a much wider remit than eDiscovery. Other main topic headings include Efficiency and Strategy, Information Management, Innovation and Strategy, and Service and Process Support. Keynote speeches cover Cyber Crime and the Economic Outlook 2012.
There are still some places for this event. This link takes you to the right place to book one of them.
In the light of Judge Peck’s Da Silva Moore Opinion approving the use of predictive coding in US Federal civil proceedings, I recently interviewed James Moeskops of Millnet about the use of this technology in English courts. The result is a podcast which you can find here.
Anecdotally, the use of such software is increasing in the UK – I say “anecdotally” because such things rarely become the subject of published judgments in the UK, and my information is the aggregate of feedback from providers who, like Millnet, have the software and the skill to provide it.
The brief recording begins with a short introduction from me describing in simple terms what predictive coding is. I then ask James Moeskops the sort of questions which might be asked by a would-be user – when would Millnet suggest the use of predictive coding, and what questions would James ask to get a feel for the case? I also ask James to describe the process which Millnet would go through, in conjunction with the lawyers, to apply predictive coding technology to the data.
I conclude by asking James where he sees predictive coding going over the next 12 months, specifically in the UK. Read the rest of this entry »
I had the pleasure and privilege of giving the opening day’s keynote speech at iCONECT’s Global Summit on Litigation Technology in Florida last week. I brought back at least as much as I delivered in terms of the understanding of eDiscovery which the event was designed to foster. I also enjoyed myself immensely.
The venue was the Hilton at Fort Lauderdale which, for the geographically challenged, lies north up the coast from Miami. There is a set of photographs here. The sea winds in everywhere here, with expensive-looking leisure vessels (“boats” rather understates it) moored alongside the hotel and strong breezes bringing squalls of rain out of a clear sky. I arrived on Saturday evening, finding Nigel Murray of Huron Legal already there, as I usually do on these occasions, almost anywhere in the world.
“An interface designed for the Facebook and LinkedIn generation but which nevertheless conveys businesslike efficiency is just what we need. Xera has all that and more. The expression “to raise the bar” is much overused, and probably belongs with “unique” and “revolutionary” in the marketeer’s verbal dustbin, but I’m willing to use it this once – Xera will raise the bar for user-friendly application interfaces in eDiscovery”
Ian Campbell’s talk took us behind the interface, talking of billion item projects, freedom from Active-X, data migration into and out of Xera, advanced analytics and domain searches; we heard about the ability to develop your own “tiles” to personalise the interface and the workflows, and about relationships with, for example, Wave, Kazeon, Nuix and Opus 2′s Magnum.
Then it was my turn. I rarely do speeches, preferring to moderate or take part in panels, but the opportunity to devote an hour to a subject of my choice, and in such company, was not to be ignored. I chose as my title Innovation and Informed Risk-Taking are an eDiscovery Duty which was, and not by coincidence, the title of an article I wrote after LegalTech. The broad themes were to do with the responsibility, shared by all the players – judges, lawyers, in-house legal, IT and information professionals, suppliers and law schools – to lift our collective heads from the craven fear of sanctions and the illusory search for a perfection which the rules do not require anyway. Read the rest of this entry »
It is fascinating to watch a story break on Twitter. The news that District Judge Carter had upheld US Magistrate Judge Peck’s opinion in Da Silva Moore appeared first as a rumour, probably within a few minutes of the promulgation of Judge Carter’s opinion. Within a short time, rumour was supported by links to the opinion itself, and not long after that the first commentary appeared.
Like Judge Carter, I am going to assume your “familiarity with the facts and the predictive coding method”. As in most jurisdictions, an order will only be overturned if it was “clearly erroneous or…contrary to law” and Judge Carter found no such grounds.
Key quotations will be recycled for months to come, Including these:
“The court adopts Judge Peck’s rulings because they are well reasoned and they consider the potential advantages and pitfalls of the predictive coding software”
“The ESI protocol contains standards for measuring the reliability of the process and the protocol builds in levels of participation by plaintiffs”
“If plaintiffs determine that they are missing relevant documents, they may revisit the issue of whether the software is the best method”
“There is simply no review tool that guarantees perfection….. Manual review with keyword searches is costly….[and] is prone to human error and marred with inconsistencies from the various attorneys’ determinations of whether a document is responsive”.
“Judge Peck concluded that under the circumstances of this particular case, the use of the predictive coding software as specified in the ESI protocol is more appropriate than keyword searching. The court does not find a basis to hold that his conclusion is clearly erroneous or contrary to law”.
The opinion ends with this:
“The court reminds the parties that it affords Judge Peck’s non-dispositive rulings great deference and Magistrate Judges generally have broad latitude with respect to discovery issues”
It is worth emphasising this latter point (that is, the fact that Judge Carter added this “reminder” on to his Opinion) because the plaintiffs motion for recusal (that is, the removal of Judge Peck from hearing these issues) is still extant. I am spared having to say too much about the plaintiffs’ lawyers by my self-imposed rule which bars overt criticism of identifiable individuals in eDiscovery – I am happy to damn with faint praise (if you are unfamiliar with that expression see the penultimate sentence of this article), to attack whole classes, or to balance negative comments with something more positive, but there are no half-measures or mitigating factors here, so it is best to keep my mouth shut – well, not my mouth, perhaps, but at least to be restrained in what I write. Read the rest of this entry »
I wrote recently about the podcasts which IQPC have put on their website as tasters for their Information Governance and eDisclosure Summit which takes place in London between 14 and 16 May.
You may be interested in another one which is available from here without having to complete the registration form.
It is one which I recorded with Professor Dominic Regan with the title Why the Jackson Reforms mean the biggest ever upheaval for litigation. I have already published a transcript of this interview but those who prefer to listen rather than read can now hear this short recording.
Dominic Regan is one of the many well-known speakers at the Summit and his talk is likely to be a major attraction for those who want to know how the practice and procedure of litigation is likely to develop.
I saw on the news last night the funeral of yet another British soldier killed in Afghanistan. He was married to a local girl and had three boys. He was 25.
It reminded me about this year’s Big Battlefield Bike Ride in aid of Help for Heroes which Nigel Murray and others from Huron Legal’s London office are bravely undertaking. The “heroes” referred to are the many who do not die but who are brought back home badly injured.
With only 6 weeks to go until the off (20th May) my training needs to step up a bit! I was fortunate to be in Dubai for a week before Easter and managed to take a couple of days off. So, hired a bike from a local shop and on the first morning headed into the desert, mostly on roads, however now and again these ran out, so had to walk to the next bit of road!. Well, the climate in Dubai, like in other parts of the world, is getting pretty unpredictable and erratic. On the day I landed it was in the late 20’s (early 80’s) however on the day I headed into the desert (leaving the bike shop at 1130am) it rose to 42 degrees (107). And with a decent wind blowing up the sand it was an interesting experience – and one that I am unlikely to face in Northern France. At one stage I took to sitting on a box in the underground car park of a horse race track, drinking my bottle of (very warm) water trying to cool down! Good for fitness though – and I survived. All in all, I probably managed about 90 miles in Dubai over 3 rides – I say probably because I had no speedo so distances were a guess based on an assumption of an average speed of 15 mph and the time actually riding
As happens every year, I will be abroad, this time in Las Vegas for CEIC. One year I will actually fulfill my ambition of a giving Nigel a wave as he pedals past.
It is good to see so many names from the eDiscovery/eDisclosure industry supporting Nigel. If you would like to join them, the donations page is here.
Since both Equivio and Relativity sponsor the work of the eDisclosure Information Project, I am necessarily interested in reports of their big sales. I do not, however, write about every success on the part of those who fund what I do because they, as well as I, value my readership and know that we would soon drive it away if all that you found here was lists of buyers. That function is ably served by others, and I am spared having to decide, for example, whether this sale is worth reporting where that one was not, quite apart from considerations like having only a finite number of hours in a week.
Every so often, however, a law firm or other user makes a strategic purchase which serves in some way as a model which others ought to follow – not necessarily with the same suppliers, but as the product of a coherent plan to offer an integrated set of services to clients which reconciles quality with cost. There is a fiercely competitive market out there of software suppliers, providers of managed review, and consultants offering project management and other skills, and a decision to bring all that in house is not lightly made. Read the rest of this entry »
In case you are wondering at the number of short posts which I have put here this morning, I began the day intending to capture short notes on my Google Plus page. I have invested a fair amount of time in Google Plus since its business pages were launched, and found it a convenient way to capture more of the ever-growing volume of interesting eDiscovery / eDisclosure material which accumulates in any week.
Having dictated a few today, I went off to add them to Google Plus. Google has recently given Google Plus what its probably calls “exciting enhancements to the user experience” or some such drivel. I call it “frigging around with the user interface”. So far as the reader is concerned, the new layout truncates my business name, making it the “eDisclosure Information Projec” or ”eDisclosure Information Pro” and perhaps other variants depending on your screen resolution. More significantly, from my point of view, you can no longer edit the link made via by the paperclip – you only get one shot at it – nor do you have the option to remove any text from the linked file which is carried over by making the link – this used to be a single-click action.
If there are in fact workarounds for these things, I can’t be bothered to look for them. I want a quick publishing tool, not a new hobby.
I may come back to it, but for now I will leave Google Plus to play with itself. The result will be an increased number of short posts on this blog where I would rather have kept it for the longer and more thoughtful posts. Another drawback is that those who have signed up for blog e-mail notifications will receive rather more of them, something I had hoped to avoid by the use of Google Plus.
I will continue to put links from Google Plus into this blog for SEO purposes and, perhaps, do the occasional very short entry there, if only to keep in touch with developments while Google plays catch-up with others. I may well look at some of those others – Pinterest for example – in the meantime, in part to find the best way to display photographs. Google Plus does this very well; Pinterest may do it better.
There is a moral here somewhere for those who think that change with enhancement are synonyms.
Charles Christian’s Orange Rag brings us a helpful summary of the recent round of acquisitions in the eDiscovery sector with the heading The Great eDiscovery Shakeup – or is that Shakeout? and predicts that 2012 will see yet more of them.
Charles describes Google as the elephant in this particular room (in the proper sense of the very big thing that no-one mentions), drawing the conclusion that Google’s appointment last summer of Autonomy’s Jack Halprin is a sign that Google wants a slice of the eDiscovery market.
I raised much the same point last summer when Halprin was appointed asking “why, exactly, does Google want a senior client-facing executive with the word ‘Enterprise’ in his job title?” on the eDiscovery side.
Charles Christian sees this potential development as an encouragement to smaller eDiscovery players to “look for an exit”, that is, to get themselves acquired as soon as possible. There are many other reasons why they might want to do this, of course.
The Orange Rag article to which I have linked is part of the latest issue of the American Legal Technology Insider, a copy of which can be obtained here.
A brief note on the judiciary website reports that Lord Justice Jackson will shortly be undergoing an operation for cancer. His absence is not expected to impede the work of the implementation of the Costs Review Final Report which will be conducted by the Judicial Steering Group in his absence.
I wish him a successful operation and a speedy recovery, first and most obviously for his sake, but also for the sake of the reforms which he has been driving through, fighting indifference and apathy as well as positive opposition.
Supporters outnumber opponents, however vociferous some of the latter may be, and Lord Justice Jackson has won the respect of many of those who oppose some of his aims. It is hoped that he will be back by October.
The Society for Computers and Law has published on its website an article by Greg Wildisen, International Managing Director at Epiq Systems with the title E-disclosure: Training Technology.
Epiq offers predictive coding through the integration of Equivio’s Relevance product into Epiq’s IQ Review, a mixture of technology and consultancy services. Greg Wildisen summarises briefly the story behind Judge Peck’s Opinion in Da Silva Moore v Publicis Groupe which approved the use of predictive coding technology in a case in which parties had agreed to use the technology, and considers the likely reaction when this type of technology is used in UK proceedings.
He focuses on the significance of analysing non-relevant as well as relevant documents and, potentially, of doing so cooperatively with opponents in order to win agreement about the validity of the process. He thinks it possible that lawyers may object to the disclosure (in the broadest sense of that term) of documents which are not strictly required in the present litigation, not least because of implications for future cases.
I am reasonably optimistic about this, partly because (as Greg Wildisen makes clear) judges have discretion to make whatever orders they think appropriate for the better conduct of the case before them, and partly because clients’ objections are likely to whither in the face of the enormous potential for cost savings – they will be willing to give a little to gain a lot or, at least, to make a proper assessment of the risks against the advantages
We shall see. Meanwhile, Greg Wildisen’s article is a good short summary of implications which UK lawyers and their clients should be thinking about.
Subjects include moves by corporate counsel to take more control of eDiscovery, the ongoing discussions about potential changes to the US Federal Rules of Civil Procedure, and developments in Technology-Assisted Review following Judge Peck’s Opinion in Da Silva Moore.
Mary Mack also talks about the difference between qualitative and quantitative early case assessment, the processing of non-standard items, and redaction.
The main message is that tools exist to take control of ESI and to reduce the time and cost of the components of the eDiscovery exercise, freeing lawyers to spend time on the issues and on strategic legal advice.
New Zealand introduced new discovery rules in February 2012, making it the most recent common law jurisdiction to exercise closer control over how the lawyers and courts conduct the management of discovery – which inevitably means largely electronic discovery.
His Honour Judge David Harvey is a New Zealand District Court judge. I met him at the excellent Singapore conference on Electronic Litigation last year and we have kept in touch. He has written an article jointly with Daniel Garrie of Law and Forensics LLC and called New Zealand’s New Discovery Rules and Electronic Discovery which summarises the new rules and which has been published this week by the UK Society for Computers and Law.
I hope to come back to this subject, but meanwhile point you to this interesting description of developments in a jurisdiction which, by standing back for a while, had the opportunity to observe what the rest of us were doing before introducing its new discovery rules.
I find that I field complaints if I fall silent for a few days. It is, of course, gratifying that anyone should notice, and a word or two of explanation might pre-empt the assumption that I have packed up and gone home – or, rather, left home, since home is where I work.
The weeks leading up to Easter were pretty busy, not because of any great commitments of mine, but because of the buzz in the eDiscovery world about Judge Peck’s opinion in Da Silva Moore and the ensuing – and disgraceful – ad hominem attacks on one of the few judges who understands about the application of technology to the just, speedy and inexpensive obligation in Rule 1 of the Federal Rules of Ciivl Procedure. The UK had its own share of activity, with a run of eDisclosure-related judgments after a long period without any.
Although I have not needed my passport since LegalTech, there was a long period in which there was always another video or webinar looming. They are fun to do, and a good way of getting messages to wider audiences, but they each have a back-story of conference calls and slide preparation whose drawback is not the aggregated time spent on them but the deadlines and the carving up of the days which they involve. In addition, there are conferences coming up between the end of April and mid-November which, to varying degrees, require planning calls and drafts now.
None of this usually interferes with the ordinary run of producing articles, which I am happy to do one sentence at a time if necessary in between other things. White papers are a different matter, requiring proper research, the assembly of sources, a structure, and time to stare at the screen whilst the ideas form. There were a clutch of those to do, and that requires switching off Twitter and email and ignoring everything else but the task in hand. I had long ear-marked the week after Easter as a good time to cut myself out of the information stream. Read the rest of this entry »
For reasons which I may explain separately, I had banked on the Easter period being quiet on the eDiscovery front. On the whole, that hope was justified, with Twitter relatively quiet, few interesting things to pass on, e-mail volumes down, and almost no phone calls.
What did appear just before the break, however, were no fewer than four important and interesting articles by judges, two from England and Wales and two from the US. I group them together here with the briefest of introductions – none of these people need much help from me to get their messages across.
The UK articles are written by HHJ Simon Brown QC and Senior Master Whitaker who, apart from Lord Justice Jackson, are the two judges best able to cover this ground (that is not saying that they are the only ones who are competent to adjudicate on eDisclosure and case management issues, but only they articulate views for the guidance of court users).
Both these articles appear on the New Law Journal site which is increasingly the source of choice for those who seek thoughtful commentary on litigation matters (and on other practice areas, no doubt). The NLJ has recognised the importance of these two articles by making them free to view. Read the rest of this entry »
One of the most useful UK resources about electronic disclosure is Clive Freedman’s electronic disclosure wiki at www.eDisclosure.uk.com.
Clive Freedman is a barrister at 3 Verulam Buildings and is (as I am) a member of Senior Master Whitaker’s working party which produced the eDisclosure Practice Direction 31B and the Electronic Documents Questionnaire. It is he who shouldered the burden of translating our deliberations into drafts and who, with Master Whitaker himself, set out to ensure that the practical and technical inputs were made to fit within the formal and procedural requirements imposed by the conventional structure of the Rules.
Clive’s website provides links to the relevant rules and practice directions and other sources of relevant materials, and adds references to cases in the courts which deal with eDisclosure. If it is my role to provide the narrative, Clive provides the nuts and bolts.
Clive has recently added a new section to his website with the heading “Using a neutral third party to resolve or prevent disclosure disputes” in which he discusses how a neutral may be able to assist the parties, with a view to minimising the delay and expense which may arise where parties are unable to reach agreement. It is relevant in this context to know that he is a Fellow of the Chartered Institute of Arbitrators and an experienced mediator of IT disputes.
His new section sets out the passage from Lord Justice Jackson’s Preliminary Report about the possibility of using what were referred to as ”disclosure assessors”. Such a person could, Lord Justice Jackson said, ”immerse himself/herself in the issues and the primary documents and identify which categories of documents on both sides truly merit disclosure” as well as dealing with other disputes relating to disclosure.
As Lord Justice Jackson’s Final Report says, this suggestion aroused strong views on both sides. I personally support the idea, partly as a remedy for the lack of specialist skills amongst case managing judiciary, and partly because of the US experience of Special Masters who perform an analogous function.
For the moment, anyway, there is no provision in the Rules for the role of disclosure assessor. Like so much else, however, there is no reason why parties should not appoint such a person by private agreement in an appropriate case, ”appropriate” generally implying that time and costs are to be saved by the joint instruction of a neutral person to stand between the parties, with an understanding of the Rules, the parties’ objectives and the techniques (a wider concept than mere technology) which might be used to cut down the disclosure burden.
It takes a particular type of skill to fulfil this role, and it is not one I seek for myself. Clive, however, does have the necessary experience, and is ready to use it to assist parties in minimising delay and expense.
I have also written and spoken a lot recently about litigation and regulatory investigations which raise legal, practical, technical and language issues, often simultaneously and often at very short notice. Regulatory investigation raise implications, and have timescales, which are particularly challenging.
The first fruits of FADV’s acquisition comes on 24 April when they host a conference on The Hidden Risks of Cross-Border Regulatory Investigations at the Cercle de Lorraine, Brussels. The event is introduced by DLR Legal’s co-founder Mathieu van Ravenstein.
The legal context is provided by Andrew Hockley, a partner at Berwin Leighton Paisner LLP, whose subject is Cartels and Leniency. Drew Macaulay of First Advantage is speaking on Challenges in gathering and reviewing evidence in regulatory investigations. Michele Tagliaferri, an Associate at Sidley Austin LLP brings together the legal and practical implications with a talk called Data collection, review and transfer issues.
All this is conveniently gathered together in an event which starts at 11:30am CET and finishes in time for lunch at 13.15pm. For further information about the event, or to register, send an e-mail to virginie.dierckx@fadv.com.
A two-day absence in a place where cellular data has yet to penetrate put me behind in the routine task of picking up useful articles and putting links to them on my Google Plus page.
Google’s enthusiasm for rolling out new features seems to have outstripped both its ability to handle the basics and its provision of any form of usable support. I am unable to edit posts at the moment – any attempt to save changes gives the message There was a problem saving your page. Please try again. Trying again yields no better answer.
The sunny uplands of Google’s formal help sections do not appear to admit of the possibility of problems. The alternative is a messy forum in which every user dumps questions and issues. An ordinary Google search may turn up the words you are looking for, but then just puts you at the top of an unsorted, unfiltered list of hundreds of questions, none of which ever seems to be answered. The only way to correct the error is to copy the contents to a new post, correct the error (in my case just a missing apostrophe), save the new one and delete the original.
The more positive side, justifying even this tiresomeness, is that the links from here index well in Google. This week’s G+ posts, excluding those which link back to my own Blog, are:
kCura’s growth prompts thoughts about how companies and industries (and empires and whole civilisations come to that) start and grow, and how they must keep moving forward to stay at the top.
The accepted wisdom, promoted by Gartner in its Magic Quadrant for E-Discovery Software of May 2011, is that there will be no new entrants into the eDiscovery / eDisclosure software market. A number of factors appear to support this idea: the cost of entry is too high; corporate counsel and law firms are, in general, looking to reduce the number of providers with whom they work; whilst the technology improves every year, the improvements are refinements of a by now fairly standard set of core technologies, with attention focused on wringing more speed, more accuracy, and greater usability out of them; the trend is towards consolidation, as players merge or acquire each other, and any new players will come in by buying an existing one; there are not enough skilled people to float a new eDiscovery player; the emphasis is on better ways of meeting clients’ objectives, of becoming more consultative and of improving both the user experience and support rather than on inventing new technology.
It would be foolish, of course, to look too far ahead in this as in any technology-driven industry. I live by a canal, for example, which, when it was completed in 1790, was the last word in transport infrastructure, the latest venture in a short and intensive spate of development which had underpinned fast industrial and sociological change, making it possible for the first time to bring food, fuel and raw materials into the cities which grew as a result, and to carry the products of the factories out to new markets. On the other side of my house is the railway, which reached Oxford 50 years later and made the canal more or less redundant overnight. Over the next 120 years, railway technology barely changed – engines became faster and more reliable, and infrastructure and safety were improved, but the pioneers would have recognised the railways which they invented right down to the point when they were wiped out in their turn by cars, trucks and buses. Other industries show similar patterns.
Much the same happens with companies. New players appear, work hard at developing new ideas and grow, becoming, perhaps, the industrial giants of their time, before either falling apart under their own, by then ponderous, weight, or being overtaken by more agile rivals. The history of the British Empire followed the same pattern, and it seems likely that the supremacy of the whole Western world is going the same way. Furthermore, the wheels are turning faster, and one can go from nothing to domination and back again in a very short space. Longevity lies in constant reinvention and in retaining the ability to keep the freshness of youthful success whilst expanding and prospering.
I have not looked back at my archive, but I suspect that I have written in these terms before about kCura, the makers of the Relativity eDiscovery software for analysis, review and production. The earliest reference I made to Relativity was in July 2008, when I first met its founder and CEO, Andrew Sieja. He came to see me in Oxford, and we walked up the canal and by the railway which gave me the parallels which appear above. If I had had any spare money, I think I would have invested in kCura on the strength of his ambition to make it succeed. It was not the technology which would have parted me from my money – Andrew may have known where that was going, but I certainly did not – but the ambitious yet wholly credible roadmap. This is what I said at the time: Read the rest of this entry »
Yet again, I find myself pointing to one of Karl Schieneman’s ESIBytes podcasts as a source of timely and coherent explanations of topical eDiscovery issues.
Predictive coding inevitably dominates at the moment, thanks to the coincidence of the Da Silva Moore and Kleen Products litigation. In both cases, although in very different ways, the defensibility of predictive coding / technology assisted review / computer assisted review / call it what you will / is at issue. Most of us who are interested in encouraging the use of predictive coding would have preferred a less confused battleground than is offered by either of these cases, and value any explanations which stick to basic propositions uncluttered by the wider agendas coming out of the cases.
Anyone who speaks from first-hand experience, whether as a provider or a user, will have a preferred product; what matters are the core concepts, and it would be odd if speakers did not use their own or their preferred products to illustrate these concepts. Here, as in his other podcasts, Karl taps the special knowledge of his speakers to draw out broader understanding.
Warwick Sharp of Equivio is a particularly lucid advocate, both of the specific components and workflows in Equivio’s Relevance product and of the wider principles – it is from him that I got the idea that the true test of a technical explanation is whether your mother, having heard it, can explain it back to you. He is one of the speakers on Karl Schieneman’s Predictive Coding and Review Roundtable recorded on 26 March; the others are Jim Wagner co-founder and CEO of DiscoverReady, and Tom Gricks, head of E-Discovery at the law firm Schnader, Harrison, Segal & Lewis, both of whom were early converts to, and are convinced users of, predictive coding where that use is appropriate to save their clients’ money without diminishing their arguments, their strategy or their proper conduct of cases. Read the rest of this entry »
Jim Shook of EMC takes us back to the stage before discovery. The advanced technology used for dealing reactively with discovery requests has its place at a much earlier stage in the process.
Judge Peck’s opinion in Da silva Moore passes into a kind of limbo pending its review by Federal Judge Carter. The analysis of the present position has been exhaustive and, to some extent, repetitive, and those of us who comment on these things have little more to say until Judge Carter does his stuff. We are waiting, too, for the next step in the Kleen Products case before Judge Nolan. It is a bit like one of those uneasy patches on the French battlefields of the Great War as everyone waited for the whistle signalling the next big push.
It is a good opportunity, perhaps, to look in a more rounded way at the broad class of technology which, whether you call it predictive coding, technology-assisted review, machine learning, or whatever, connotes generally the idea that computers learn from a mixture of rules and previous inputs in order to “predict” what should be done with documents, classes of documents or, perhaps, whole servers full of documents. The technology being developed for this, and for similar functions which have nothing to do with discovery, has many of the same characteristics and objectives as the pure discovery applications. Marketing intelligence, news sites which point you to related articles, shopping sites which suggest alternative purchases and (as Judge Peck noted) anti-virus software, all include elements of this kind of prediction. Read the rest of this entry »
Patrick Oot of the Electronic Discovery Institute and the SEC is interviewed by Jim Vint of Navigant in a podcast which anticipates some of the subjects which will come up at IQPC’s London Summit between 14 and 16 May
The list of speakers for IQPC’s 7th Annual Information Governance and eDisclosure Summit is pretty good bait on its own, even without looking at the agendas for the Pre-Conference Workshops, Day 1 and Day 2. Even if you do not know the names of the individuals (and you will certainly know some of them) the job titles and the company names make it clear that you will be getting ideas and recommendations from the top.
Social media and electronic disclosure are two important subjects which many companies and their lawyers would rather ignore – their very names are enough to strike apathy into many hearts. eDisclosure provider CY4OR has joined forces with others to promote awareness about these two subjects, which can often become inter-related, and at short notice.
Some subjects do not get the attention they deserve, their very names causing lawyers and their clients to change the subject. In any context, the labels can have an alienating effect or can conceal what is really meant. A former director of the Imperial War Museum once said that he had to sell the hardest three words in the world, though he went on to achieve just that. Twenty or more years ago, British railway companies, as uselessly incompetent then as now, decided that calling their passengers “customers” would stand substitute for any improvement in the service. The UK Civil Procedure rule-makers decided in 1999 that relabelling “discovery” and calling it “disclosure” would somehow make the process better.
Labels can arouse derision (“politician”), fear (“hoody”), contempt (“chav”) and so on, encouraging the suspension of thought as to what is embraced by these terms.
Sometimes, labels simply become affixed to a subject or category without direction or decision, in the way that “social media” has stuck to a range of mechanisms which allow people to communicate. Like the smooth green surfaces on Dartmoor which conceal deep quagmires, they are traps for the unwary. Read the rest of this entry »
Here is another of of the periodic lists of the short posts about eDisclosure and eDiscovery which go on my Google Plus page. This is in part a place to put short posts which link to things which might otherwise be missed, each with a short comment from me.
There is a secondary purpose: whilst each such article and link must have its own value, they also serve a valuable SEO (Search Engine Optimisation) purpose. Links from there back to here reinforce the SEO of this Blog. Links from here – by which I mean the entries on these occasional index pages – are ranking high in Google searches after a day or two.
I have been playing catch-up after a bad (or good depending on your viewpoint) run of videos and webinars which means that my formal writing schedule has slipped a bit and that I have a large stockpile of interesting links. The list below is a selection of things which came my way in the last week.
I was sorry not to make it to Lord Justice Jackson’s speech to the Society for Computers & Law this week. Someone will doubtless write a full report in due course, but for now the Law Society Gazette brings us a summary under the heading Jackson warns of compulsory electronic era.
Most of what is listed in the article relates to the provision of IT services by the courts which lawyers will be required to use, including compliance monitoring requiring parties to tick boxes to show that they have achieved milestones required by the rules or by court orders. There will also be a form for completing budgets which will presumably take account of the feedback received from the form already in use.
We will have to wait and see what is meant by the “development of systems to manage the disclosure of documents”. Disclosure is an obligation which falls on the parties, who can choose from a wide range of software applications according to taste and budget to help them cull the dross and prioritise the rest for review and subsequent exchange. I can see immense value in a court-led system for holding the conjoined (and de-duplicated) disclosure of both parties after exchange or, at least, that part of it which goes into the equivalent of the conventional trial bundle or which is the subject of an application before the court. I am unconvinced that the court has a role in hosting (as opposed to managing) documents at any stage prior to this.
Civil servants and user-facing databases have not made for happy combinations in the past, as anyone who has to grapple with the online presence of HM Revenue and Customs will testify. I recently had to fill in a VAT form which one could only access if one knew its form number; it did not open on a Mac, had no provision for saving the data either locally or at HMRC and, when printed, would have used half a pint of green ink. It was invented, I decided, by a committee of accountants, tax inspectors and geeks with no human involvement at all. Let us hope that the Ministry of Justice involves real live users when devising its systems (and, perhaps, takes some advice on the terms of contract with its providers).
That much is beyond the control of Lord Justice Jackson. We can be in no doubt, however, that those things which are within his power will happen. As with eDisclosure itself, the technology is secondary to the process, and all the fancy forms and electronic box-ticking will not help if judges and those who appear before them do not take seriously their shared obligation to fulfil the overriding objective. That requires active management by judges as well as project management by lawyers; both have hitherto felt themselves rather above that sort of thing.
The collision between US discovery requirements and EU privacy and data protection laws is a long-running story of mutual incomprehension on which the formal conflict of laws is merely an overlay. US courts and regulators expect every last document to be produced according to a test of “relevance” which is cast as widely as possible, unconstrained (to European eyes, at least) by any sense of proportionality or necessity, even before you reach privacy, data protection and specific restrictions such as French blocking statutes.
There is a yet deeper layer of mutual antipathy, at some levels at least, between France and the US, derived in part from differing recollections of the country’s respective contributions to the outcome of the Second World War, and to the position taken by France in various subsequent conflicts including their attitude to NATO during the Cold War, the bombing of Libya in 1986 and, most recently, the invasion of Iraq. Given the matters of high diplomatic importance which give rise to this US picture of the French, it is perhaps curious that the American view should find its most eloquent expression in words uttered by Groundskeeper Willie in a 1995 episode of The Simpsons; forced to multitask as a French teacher, he hailed his class with “Bonjour, you cheese-eating surrender monkeys.” The expression caught on, exacerbating the idea that the French may talk a lot but rarely defend their position. This extends, in US eyes, to the enforcement of their Blocking Statute. Read the rest of this entry »
Proof Finder 2 is a limited edition version of Nuix’s investigations and eDiscovery software tool which, in an imaginative exercise, the company is selling for $100 per licence per year. It has all the functionality of the full product, subject to a ceiling of 15GB per case. This second Proof Finder wave also includes the new Nuix Visual Analytics.
This initiative caught the eye not just because of the extremely rare opportunity to use top rank eDiscovery software at little cost, but because all the proceeds are to go to a charity – Room to Read, which supports education and literacy in the developing world by making books and reading skills available to those who would otherwise do without. The first Proof Finder release raised $35,000 which will be used to build a new school in Nepal.
Ideas like this warrant an equally imaginative approach to marketing them. Consistent with this, Nuix has produced a video which simultaneously explains the Proof Finder concept, tells you about Room to Read and illustrates Proof Finder itself to give potential users an idea of what they will see and what they will be able to do with their copy of Proof Finder.
Proof Finder 2 is backed by training, support and a range of other things designed to make it easy to learn how to use the software. That ease of use begins with a simple way of paying your $100 and getting hold of your copy.
I took part in a video webinar with LexisNexis this week, part of their rolling programme of Butterworth’s Dispute Resolution webinars.
The key fact which I want to put right at the top of this article is that 2,340 viewers from 85 firms registered to watch this webinar, either live or by downloading it across the year. There is the CPD bait and, no doubt, law firm training supremos go round with whips to compel attendance, but this is tremendous reach, and an indicator of the subject’s importance.
The session was chaired, as always, by Professor Dominic Regan. My subject was disclosure (with and without an “e” at the beginning), and barrister Shantanu Majumdar of Radcliffe Chambers covered privilege as he did for the same event last year. Privilege is a subject which needs a light touch and rarely gets it – when it comes up at litigation conferences, I usually go out and have a smoke, check my e-mails and make my calls, and this is difficult when you are shut up in a basement in front of a camera. Shantanu Majumdar, uniquely in my experience, makes the subject interesting.
Dominic is a good chairman – he comes across more as a genial host who has invited a couple of mates round to talk about things which interest them, without diminishing at all the seriousness of the subject-matter or the importance of the content. LexisNexis have much improved the studio, possibly as a result of my complaint last year that I had to look down and left to see the slides and up and to the right to look at the camera. The slides are now immediately under the camera, which makes engagement rather easier. Furthermore, the remote-control does actually move the slides when you click it. Read the rest of this entry »
Here are links to some of my recent Google+ posts. These are short posts relating (usually) to eDisclosure / eDiscovery whose main purpose is to draw attention to articles and other things of interest which I come across. I put them here in batches, excluding those which link back to posts which you will have seen here anyway.
I cannot remember when I last read a judgment whose subject matter included questions about whether certain documents could be said to be in the “control” of another for the purposes of disclosure. Two such judgments have come my way today.
This was not the central issue in Phaestos Ltd & Anor v Ho [2012] EWHC 668 (TCC) (16 March 2012), which I wrote about here, but arguments about the control of documents were one of the reasons for the disclosure delays which were the subject of the judgment. The judge in that case ordered that a witness statement be made supporting the contention that certain documents were not in the control of the party giving disclosure.
North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11 (18 January 2012) is a part one of those long-running sagas resembling War and Peace, both in its narrative spread and in its country of origin. More than one judgment turns up when you search for the names of the parties. My link is to a Court of Appeal judgment in which, on the facts before them, the court upheld the judge’s conclusion that documents in the hands of a trust remained in the control of the Appellants and were therefore liable to be produced.
The court was at pains to emphasise that these arguments appear in many guises, including those relating to the separate identity of a limited company as well as to that of a trust. It was not “either necessary or possible to give a cut and dried answer to the question whether and when a court may make an order” of the kind sought, and “in deciding whether to order disclosure, a court may have to balance competing interests of different beneficiaries, the trustees and third parties. Disclosure may have to be limited and safeguards may have to be put in place.”
Jack Bond, litigation support specialist at Dewey & LeBoeuf in London is organising a charity Quiz Night on 3 May in support of The Children’s Trust and in memory of his daughter, Sarah.
He is getting together teams in tables of six from people in firms, companies and service providers whose work involves litigation support, eDisclosure, translation and the like. Those booked in already include providers including:
Clearwell
Control Risks
CY4OR
DLR Legal
Epiq
Ernst & Young
First Advantage
FTI
Geotext
Millnet
Transperfect
Unified
By coincidence, we have a second UK judgment in a few days which ends with indemnity costs being paid by a party for failing to comply with its disclosure obligations. Mr Justice Akenhead’s judgment in Phaestos Ltd & Anor v Ho [2012] EWHC 668 (TCC) (16 March 2012) begins with this:
This revised case management hearing was fixed on Wednesday for an hour-and-a-half, starting at 8.30 in the morning. It was listed for an hour-and-a-half and the purpose was, as I made clear on Wednesday, that the Court should finally deal with, and dispose of, issues relating to the scope of electronic disclosure on the part of the claimants, primarily. It is clear that substantive agreement on the defendants’ electronic disclosure had been reached.
…and it ends with this:
It is agreed that the costs of, and occasioned by, the claimants’ application earlier today should be borne by the claimants in any event. The only issue is whether it should be on an indemnity basis. I am wholly satisfied that this is an appropriate case for an indemnity basis. The court has made it clear, on at least two previous occasions, and probably more, that the question of electronic disclosure and any issues arising out of it were to be dealt with at the latest by the end of this particular week, preferably earlier. Earlier orders talked about getting it resolved on or by 5th March 2012 ….The claimants and their solicitors, collectively, have had more than enough time to “get their act together” on this… Read the rest of this entry »
If you are not yet familiar with the plaintiffs’ arguments about predictive coding (I use the word “about” in its broadest sense, since much of the argument appears to be about some completely different agenda) in Da Silva Moore v. Publicis Groupe & MSL Group, Rob Robinson has helpfully gathered together the formal documents in one place.
In my 7 March article Judge Peck’s Predictive Coding Opinion – Reporting the Reaction, I picked out points made by various of the better-known commentators on the then state of play in the Da Silva Moore Predictive Coding dispute. I ended that article by saying “I can think of two or three commentators, so far silent, whose views will be worth having.” Today brings us the expected article from Herb Roitblat, CTO and Chief Scientist for OrcaTec, one of those whose opinion I had in mind.
My decision to stop reporting every additional layer of comment on Judge Peck’s Da Silva Moore Opinion (see Closing down the Da Silva Moore discussion for now) was made in part because of the diminishing returns we were getting from the focus on this one case, and partly because it was becoming clouded with agendas remote from the technology and from the wider issues addressed by Judge Peck in his Opinion. There is room, however, for some straight up-and-down discussion which might otherwise be crowded out.
An example of this is an article in Metropolitan Corporate Counsel headed Can Technology-Assisted Review Coexist with Strategic Search? This is an interview with Amanda Jones, Senior Research Consultant with Xerox Litigation Services. As its heading implies, the article reminds us that the high-end search tools known variously as predictive coding, technology assisted review et al, is but one of the search tools which are available to help with the identification of the documents which matter and the relegation of those which matter less or which do not matter at all. Read the rest of this entry »
The terms of the plaintiff’s Objections to Judge Peck’s predictive coding opinion in Da Silva Moore v Publicis Groupe deprive the commentators of anything useful to say. It is not merely that the decision goes into limbo pending the District Judge’s ruling, but that serious discussion has been drowned by things which have nothing to do with developments of law, practice and procedure, still less with proportionate justice, and which have not a lot to do with the case itself.
It is not that comment has dried up completely – we’re still seeing sober updates from people whose judgment can be trusted, like eDiscovery Journal and Katey Wood. The only wholly new intervention of value comes in an article from Sandra Serkes at Valora who recognises the common interest of everyone concerned in a rational outcome. My use of the word “rational” connotes nothing partisan – it is the collective good which concerns me, not the fate of either party in the case itself.
There seems to be a parallel agenda running in some quarters, remote from the case itself, with motivation one can only guess at.
I am, anyway, too busy banging my head against the desk after reading the Declaration of the plaintiff’s expert witness in support of their objection. How have we come to this? I give no view on the propriety of the Objection or on the content of the Declaration. I am just wondering what it has all got to do with the “just, speedy and inexpensive” requirement of Rule 1 of the Federal Rules of Civil Procedure, with proportionality, with the obligation of cooperation imposed by the rules and expressly required by the judge, and with the evidence on which this case will turn.
Feedback suggests that my use of the word “demotic” requires some explanation. Strictly, it is an adjective meaning popular or vulgar. It has acquired the informal status of a noun referring to the language or habits of the horny-handed sons of toil. One of the hallmarks of Anglo-Saxon is short, stubby words which make their point without frills or any attempt at elegance, and my headline therefore referred to the sort of language you might expect from a sailor at closing time at a bar in Leith. I have muttered a few more words of that kind on this subject over recent days.
Of the 112 articles sitting in my “must read” folder, many relate to Da Silva Moore. With one or two exceptions with longer-term value, I propose to archive them all until there is something new and useful to say about this case. There is plenty else to write about.
First Advantage Litigation Consulting (FADV) has announced the acquisition of London based DLR Legal, a global managed review services business. First Advantage already has a strong practice in managing projects involving multiple jurisdictions and multiple languages, and the acquisition of a document review company with specialist language skills and cross-border experience strengthens that practice considerably.
DLR Legal is based in London and Brussels, and was established specifically as a network of multilingual lawyers and paralegals. There is more to this than translation and review – DLR Legal is also able to bring people with appropriate jurisdictional legal qualifications to the project in hand. This has obvious benefits, not merely for relevance assessments but for the crafting of specific searches and for legal analysis where this is required.
DLR Legal emphasises that it is not a recruitment agency which rounds up teams on demand if it can find them. Instead, it spends a considerable amount of time locating, pre-screening, pre-interviewing and testing candidates before a project comes up.
I spoke to Drew Macaulay, Director of Business Development at First Advantage, who said that DLR Legal’s ability to field large teams at short notice was the factor which originally caught First Advantage’s attention when they needed to assemble a German-speaking team in London at short notice. It took DLR Legal one weekend plus one working day, Drew said, to have 25 German-speaking lawyers ready to start work in London. It was not just the speed which counted, Drew added – the quality of their output was very high. The idea of an acquisition grew from there.
First Advantage has its own hosted document review platform, Global RPM, which has strong multilingual capabilities in addition to the other processing, analytical and workflow capabilities expected of modern eDiscovery applications. The strengthened managed review services resulting from the DLR Legal acquisition allows First Advantage to offer multi-jurisdictional, multi-lingual discovery services whether or not the data is to be processed and/or reviewed in its own platform. Clients may choose to use FADV for the whole electronic disclosure process or just one or two elements depending on their own resources.
I did not attend LawTech Futures 2012 – the Future of Legal Technology, the conference organised by Netlaw Media and the Orange Rag’sCharles Christian last week. There is enough to do on my own patch without straying into the wider pastures of general legal technology, and I reckoned that I would hear enough about it to save me the trouble of going. The expression “hear enough about it” proves something of an under-estimate, and we have not even seen Charles’ own report yet.
Comprehensive reporting
He can probably save himself the trouble, in fact, thanks to the comprehensive report of Brian Inkster of Inkster’s Solicitors, on his Time Blawg. Headed LawTech Futures 2012 Reviewed: the Search for the Holy Grail of Legal Technology Conferences has Begun!, Brian’s report amply justifies my decision to wait and take it all in at second-hand. When you add the enormous quantity of high-quality photographs which have been posted – and this is just the first batch apparently – physical presence was clearly unnecessary.
I like the idea, incidentally, of photographing Charles Christian from below with half his face in darkness as he delivered his Brave New Technology Future speech – the Ghost of Christmases which will never come if you don’t get your act together, perhaps.
The already apocalyptic effect of this is enhanced by converting the photograph to black and white.
Good marketing
Some broader points arise which are of importance to anyone organising conferences aimed at lawyers and law firms. The marketing was brilliant – it obviously helps that Netlaw Media and Charles Christian are both professionally concerned with marketing and promotion in this space and have the skills, the contacts and the platforms to reach both sponsors and delegates. The post-event marketing, which is important for more reasons than the attraction of next year’s sponsors, has maintained that high-quality pitch. Read the rest of this entry »
Disclosure in UK civil proceedings, with or without an “e” at the front of “disclosure”, is not a game for amateurs, raising serious points about the strict interpretation of a deceptively simple-looking rule as well as practical considerations – and that is before you get to the technology. If UK lawyers can learn something from Shah v HSBC Private Bank, US litigators will see one reason why UK disclosure is so much narrower in scope than the bloated excesses of US discovery.
I am obliged to Ashurst for the case summary which tipped me off to the judgment covered here. The case is Shah & Anor v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154 (13 October 2011). The claim itself concerns a delay in banking transactions which occurred because the bank suspected money-laundering and felt obliged to make authorised disclosures under the Proceeds of Crime Act 2002.
The application which came before the Court of Appeal concerned disclosure under the Civil Procedure Rules. Two questions arose: did the bank’s standard disclosure obligations require it to reveal the names of the bank employees who were involved? If they did, was it entitled to preserve that anonymity by redacting those names on the ground of public interest immunity?
The court (the main judgment is from Lord Justice Lewison) found for the bank on a strict interpretation of Rule 31.6, the definition of standard disclosure; the PII point effectively dropped away.
The paragraphs numbered down to 18 are a recital of the underlying facts. The claimants wanted to know the names of the individual employees involved in complying with the POCA requirements and with the bank’s internal procedures. The question arose as to whether this information was “relevant” although, as we shall see, this is in fact the wrong question. Read the rest of this entry »
Arguments continue as to the value of Google Plus as a FaceBook rival. I don’t much care about that, only about its ability to attract wider audiences. It is working for me (well, something is) and I continue to put short posts on my Google Plus page, cross-linked both from occasional summary posts here and from my web site.
Quite apart from the SEO (Search Engine Optimisation) value, this allows me to cover a wide range of subjects and pick up more of the many useful articles which come by without triggering an email to my Blog subscribers with every addition.
Recent additions on Google Plus include the following:
It is perhaps not surprising that we have yet to arrive at a universal name for the set of algorithms and processes which lie at the higher end of the eDiscovery / eDisclosure market. Barry Murphy addresses this in an eDiscovery Journal article called Technology-Assisted Review: What Should We Call This Market?, showing by his article’s title that one cannot even open the discussion without picking one of the variants to establish what the subject is.
If I favour predictive coding, it is because that is the term used by the first entrants into the market, becoming a useful label more or less divorced from the bare meaning of the words. Those who came afterwards wanted simultaneously to claim their place at what was evidently becoming the top table whilst simultaneously seeking differentiation – a differentiation which the first-comers are equally keen to preserve. Barry Murphy identifies some of the terms and gives us a poll in the hope of steering us towards a consensus. Read the rest of this entry »
He that is without sin among you, let him first cast a stone
You will all by now have seen or heard about Mr Justice Ramsey’s judgment in West African Gas Pipeline Company v Willbross Global Holdings Inc in which the claimant was ordered to pay certain costs to the defendant arising from a series of defects in the claimant’s electronic disclosure. You get some idea of the scale of it from the fact that the judge felt unable to quantify the costs and sent them off for detailed assessment, ordering £135,000 be paid on account.
So what? Yes, I mean it. So what? What new law is there here? What do we learn from this case about electronic disclosure that we did not know before? Disclosure on the scale required for this case is a difficult and complex business. Lawyers owe a strict duty to the courts and to their opponents as well as to their clients. The parties themselves have onerous duties. Massive sums are spent on both sides, both by those giving disclosure and those dealing with what comes in on exchange. The potential for it all to go wrong is very high, and the prime responsibility falls on the lawyers with the conduct of disclosure. Read the rest of this entry »
A version of the law of diminishing returns is relevant to one function of predictive coding – its use for prioritisation makes it possible to calculate how much value you are finding relative to the number of documents you are reviewing. The same applies, perhaps, to articles about Judge Peck’s decision in Da Silva Moore v Publicis Groupe, as each one finds it harder to bring something new to what has already been covered. There is still room to add value to the subject, however, and this is not the last of my articles on the subject.
The two companies named in my heading, iCONECT and Equivio, are in fact related in that there is a partnership between them which appears from both their web sites. That is a coincidence so far as this article is concerned. They are grouped together because both have recently launched visual enhancements to their applications and their web sites which are worthy of note. They have both made enhancements, also, to the technology in their applications, but I am here concerned only with what they look like and how they work from the point of view of a potential customer who wants to know about the products.
If you think that this is a superficial approach to marketing business tools then think again. I do not suggest that law firms and corporations make purchasing decisions on the strength of web site artistry, because any serious player (and these companies are interested only in serious players) will delve well below the surface before buying anything. I am not, either, suggesting that their rivals in the same space are backward or deficient. Marketing, however, consists in part of catching the eye, and both these companies have certainly achieved that.
Let’s start with Equivio, who have simultaneously released a user application, Zoom, and a web site which have torn up the standard spec for both. Zoom, which combines Equivio’s near-duplicates, email threads and Relevance applications, is crisp and white. It has as little as possible on the screen at any one time, and “intuitive flow” (their choice of words, but I’m happy to endorse it) from one stage of the process to another, and the use of graphics wherever possible to give clear guidance as to the present status of the processes. Read the rest of this entry »
I am, on the whole, fortunate in the judgments which I have to read. Most of them involve procedural failures and breaches of what are, frankly, fairly straightforward obligations. You do not have to be a lawyer or a technologist (let alone both) to understand the provisions of Part 31 of the Civil Procedure Rules and its practice directions, nor the US equivalents. I quoted with approval the assertion by Allison Stanton, eDiscovery Counsel at the US Department of Justice that “[Her] 5-year-old can tell by page 3 of an opinion that it is going to end in sanctions” (see Compare and Contrast: US and UK attitudes to Preservation Sanctions).
That is not, of course, to say that electronic disclosure / electronic discovery is easy, nor to suggest that there is no room for fundamental disagreement about the application of the rules and precedent to any particular case. The law itself, however, is pretty straightforward.
The same cannot be said for the matters which came before the Court of Appeal in Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd & Anor [2012] EWCA Civ 265 (09 March 2012) which addresses multiple matters of the law governing commercial contracts which, separately and together, explain why the commercial bar attracts some of the highest intellects. The central issue, however, and the reason why HHJ Simon Brown QC sent it to me, appears in the opening paragraph, which reads as follows:
The principal question which falls for decision in this case is whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial transactions for a contract of guarantee to be contained in a single document, and it is no doubt convenient that a guarantee should be evidenced in this way. The question however which arises in this appeal is whether it must. Christopher Clarke J, in the Commercial Court, held that it need not – [2011] EWHC 56 (Comm); [2011] 1 WLR 2575. He held that an enforceable contract of guarantee may indeed be found in a properly authenticated series of documents. His decision is said to have been unorthodox and contrary to the understanding of commercial men. It is said to have caused alarm. Read the rest of this entry »
Here is an interesting judgment, Patel v UNITE the Union [2012] EWHC 92 (QB) (27 January 2012), which Professor Dominic Regan has pointed me to. The target of postings on a union Internet forum alleges defamation and harassment. The union claims that the forum has been deleted and that they cannot identify those who made the postings. What help will the court give to the alleged victim in his efforts to identify those who wrote about him?
The story, put as briefly as possible, is that anonymous union members made observations about Mr Patel which give rise to potential causes of action against them. He claims both that the postings amount to actionable libels and, in the alternative, that he has a cause of action under the Protection from Harassment Act 1997. The forum had warned its members that their true identities might be disclosed to third parties, subject to relevant data protection and privacy rights.
Patel obtained a court order against Unite requiring them to make a reasonable search for the information and to serve a witness statement. Unite claimed that the information was no longer available, and resisted an order for examination of the relevant servers on grounds which included the data protection and privacy rights not only of those who made the postings but of everyone else who had used the forum.
The judge concluded that he had power to make such an order on the basis that, whilst identification of the alleged wrongdoers may not be achieved as a result, it certainly could not be achieved without the order. Protection against intrusiveness would be achieved by the appointment of an independent expert agreed on by the parties who would provide nothing more to Mr Patel then “information which identifies those responsible for the posts complained or which explains why (if that be the case) they cannot be identified”.
This, said the judge, met the requirements both of proportionality and of protection of privacy and data protection rights.
Relatively few of the eDisclosure / eDiscovery newsletters focus on the UK, so it is good to welcome Epiq Insights from Epiq Systems which is now available as a web page as well as by subscribing to an e-mail. The current edition is here.
It includes links to articles which are either about the UK or which, whilst having a US origin, are relevant to those responsible for the management of UK eDisclosure exercises.
Of the ones I have not seen before, I refer you in particular to the New Law Journal article on right-sizing the outsourcing of document review written jointly by Epiq’s Saida Joseph and Mark Surguy of Eversheds. Its conclusion is that the on-shore / off-site model for document review is the one which strikes the best balance between cost and risk.
This is a relatively new model for the UK market and one which has attracted a lot of attention very quickly. I gave a video interview yesterday for the College of Law. Quite often when I do these things, I am invited to say what I want to talk about. The College of Law works the other way round – they detect the trends which interest their audience and send me the questions. One of this year’s questions, appearing for the first time, was about managed review Read the rest of this entry »
Nigel Murray, managing director of Huron Legal in London, is limbering up for his annual bike ride to raise money for Help for Heroes.
This year the ride is across the Great War battlefields of north-eastern France. It involves 375 miles in five days, no mean feat for a man of a certain age whose posterior is more used to a comfortable seat at a desk, in an aeroplane or in a restaurant, and who can often be found with a beer, a cigarette or both in his hands.
Nigel has raised over £15,000 over the three years in which he has done this ride. This year he is to be joined by a team from Huron’s London office – a fine instance of leadership by example.
I used the expression “over the top” in my heading for a reason. It has come to be associated with divas having hissy fits, with the extravagance of some electronic discovery or with the faux outrage of the Daily Mail as it incites its readers to get worked up over some triviality. The expression in fact derives from those same trenches which the Help for Heroes cyclists will see as they cross France. Nothing one can imagine could equal the terror one would feel, and the courage one would need, waiting in a trench for the dawn whistle which was the signal to climb over the parapet and out into the shelling, machine-gun fire and barbed wire which lay over the top – officers and men in the shared democracy of death and injury. Read the rest of this entry »
The first is Dominic’s interview with Lord Justice Jackson which he has now written up for New Law Journal under the heading Jackson on Jackson. Those with an interest in electronic disclosure will focus on two things – the promise of training for judges in costs management and this blunt warning to practitioners towards the end of the article:
They should start to think about costs budgeting now and also look to embrace technology. The days of paper are numbered.
Many in my profession, I know, treat a deadline as the starting gun. I remember fondly my conversation with a law firm partner six months after the UK Bribery Act came into force. I mentioned it as a reason for lawyers to become acquainted with the technology which exists both to identify deviations from the norm in a proactive way and to enable efficient reaction to requests by regulators or prosecutors. “The Bribery Act”, he said. “Ah, remind me…”. Read the rest of this entry »
One does not have to be obsessive about web rankings to be interested in the reach of one’s blog posts, particularly in an industry which constantly evolves – or, as recently, takes the occasional big jump. Can one be heard beyond one’s regular readers, in an area of business in which everyone has something to shout about?
Idle curiosity made me do a search yesterday morning on Google.com for judge peck da silva moore. I was pleased to see that an article of mine – published less than 24 hours previously and in competition with many US articles – appeared on the first page of search results. A search for peck predictive coding, again in Google.com, had my article at the top.
A post by Millnet’sCharles Holloway (or, strictly, the home page of Millnet’s blog) also appeared on the first page of the first of those searches. Amongst the things Charles and I have in common (being English solicitors with an interest in US eDiscovery is a prerequisite for what I am talking about) is our use of WordPress as our blogging platform. I chose WordPress originally (this was in 2006) because tests showed that it had better SEO (Search Engine Optimisation) than Google’s own blogging platform. Read the rest of this entry »
Each year, Andrew Haslam of Allvision writes a comprehensive report of LegalTech through the eyes of UK visitors. I say “visitors” in the plural because Andrew solicits contributions and views from others and splices them together.
This year, it seems, contributions and views were not the only thing he picked up from LegalTech – he returned with a debilitating infection which is only now fading away. That may have affected the timing of this report, but has done nothing to lessen its quality. It can be found here.
I interviewed Professor Dominic Regan last week about pending developments in UK litigation. Dominic Regan is speaking at IQPC’s Information Governance and eDisclosure Summit, which takes place in London between 14 and 16 May, where I will introduce and moderate the session. In this interview, Dominic Regan foreshadows the major changes which he will talk about at the Summit.
Chris Dale: Hello, I’m Chris Dale of the UK-based eDisclosure Information Project, which carries information about electronic disclosure – electronic discovery as every other jurisdiction calls it – between judges and lawyers and clients and suppliers. I have with me Dominic Regan who is a solicitor, writer, broadcaster, and an adviser to Lord Justice Jackson on cost management, and on the Costs Management pilot. He is also a professor at City University, London. He provides litigation training to a number of Government departments and to many law firms throughout the UK, and hosts webinars, writes, and generally spreads the word about case management and other aspects of litigation. Professor Regan is due to speak at IQPC’s annual Information Governance and eDisclosure Summit, which takes place in London between 14th and 16th May. His subject there is 2012 – The Most Significant Year in the History of eDisclosure? Like Richard Susskind’s book title, The End of Lawyers?, this has a question mark at the end of it. From where I sit I think that 2012 will indeed be the year of disclosure.
We have just seen a significant judicial opinion in the US by Judge Peck in the Da Silva Moore case, which gives judicial blessing to the use of advanced technology known as predictive coding. The UK Courts have just penalised a party in costs for its disclosure failures, which will help focus minds on the risks of inadequate disclosure. The Richard Susskind line – that law firms will see their traditional practices whittled away by what he calls disintermediation, as others offer the components of litigation tasks at lower and more certain costs – is something else that solicitors have to look out for. And we have the Cost Management pilot coming out of Birmingham, and other aspects of Lord Justice Jackson’s proposals, which are now heading into law.
Dominic, let’s start with a very broad question about Lord Justice Jackson’s reforms. How important are they? Read the rest of this entry »
It needed no great prescience to anticipate a flood of articles about US Magistrate Judge Andrew Peck’s opinion in the Da Silva Moore predictive coding case (Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. February 24, 2012). I made an early election to stand back before writing about it, reckoning that I do you better service by pointing to the best of the early reactions and then taking a broader approach myself, not least in jurisdictional terms. I may challenge from time to time the idea that the US is in any sense “ahead” of the rest of us in terms of rules and processes, but there is no challenge to the suggestion that new technology gets its most exacting trials in the fire of the Federal Rules of Civil Procedure, and other jurisdictions can observe and learn.
In what is, I think, the only UK article thus far apart from mine, Charles Holloway of Millnet reckons, in an article headed In the jaws of ediscovery, that an English judge would take the same view as a US judge in similar circumstances. There are judges and judges of course, on both sides of the Atlantic, but I think Charles is right. Millnet know whereof they speak in this regard, having been involved in the only UK predictive coding case whose outcome has been written up publicly – see my article Two predictive coding case studies emphasise time and cost savings, which involves a US case involving Epiq Systems well as Millnet’s UK one.
The present article points to some (by no means all) of the commentary which has appeared already, allowing me to go on to take a slightly different approach in my separate article.
The best plots are those which can be summarised in a few words. “Father murdered, uncle bad, Ophelia hot, Hamlet mad, all dead” tells you all you need to know about Shakespeare’s most famous play. The equivalent in respect of Judge Peck’s opinion came from Warwick Sharp of Equivio who quickly boiled the whole thing down to this: Read the rest of this entry »
A LegalTech panel organised by Xerox XLS gave us the opportunity to hear four well-known judges discuss the use of technology for eDiscovery. Only one of us knew that the subject would become headline news within days, as Judge Peck moved towards his important Opinion in the Da Silva Moore case.
The trouble with predictive coding, as we all know, is that no one can agree on the numbers. Were there 17 sessions at LegalTech in which technology-assisted review played a big part, as somebody said? Or was it 21, as somebody else said? It depends on some collaborative assessment as to what we are measuring.
The number of conference sessions and articles about predictive coding at and around LegalTech did not seem to me to be excessive having regard to its importance and its potential as it then appeared. I went to only one of them, organised by Xerox Litigation Services, my choice dictated partly by the composition of the panel and partly because it was an early morning breakfast session, allowing me to fit it in between an even earlier breakfast and a packed day.
The panel, from left to right in the picture above, comprised US Magistrate Judge Frank Maas, Senior Master Steven Whitaker from the UK, US Magistrate Judge Andrew Peck, and US Magistrate Judge David Waxse. The moderator was Gabriela Baron of Xerox XLS. Read the rest of this entry »
There is no doubt that the hot topic at the moment is predictive coding following Judge Peck’s written Opinion of last week.
The rest of the eDiscovery world does not, alas, take time out to clear the stage for any one big topic, and I have captured on my Google Plus page some of the articles and points which have arisen in other areas. It is like bailing a leaky boat – as fast as I get things out of my store of interesting things to come back to, more comes in at the bottom.
I have no particular ambition to catch it all, and most of it is readily available as it happens on Twitter. Whilst we now know that Twitter is flogging off our old tweets for advertisers to mine, the reality for most of us is that what rushes past is lost as soon as it reaches the bottom of the Twitter screen. It seems worth capturing some of it as it goes. Today’s articles include, in no particular order:
That is a pretty wide range of topics to fit under the general heading eDiscovery, and barely scratches the list of things to cover.
In between all this, and rather less seriously, a three-way exchange was running on Twitter about Mr Cameron, Rebekah Brooks and the ex-police horse Raisa. I wrote about that here:
Stories happen when they happen, and the copy / paste news sites and story aggregation people do a good job at rushing the contents of the latest press release to your virtual door. G K Chesterton’s Father Brown famously talked of hiding a leaf in a forest or a pebble on the beach and, whilst I must not rely exclusively on 19th and early 20th century fictional detectives for my parallels (it was Sherlock Holmes earlier this week), I am not much interested in the Gadarene rush to regurgitate press releases at the same time as everyone else, based on the same (and generally sam-ey) texts. I’d rather not just be another leaf in the forest.
What makes an industry story interesting is its place in a context or a trend – how it moves things along or provides factual evidence of an otherwise anecdotally-based assertion. Two recent announcements by Epiq Systems warrant more than merely passing on the press releases. One is Epiq’s acquisition of De Novo Legal which took place between Christmas and New Year, a time when, as you would expect, my page views graph shows a dip to less than half of its normal level; accordingly, I just passed on the PR, saying that I would come back to the story in due course. The appointment of David Fryer as Epiq’s General Manager of UK Operations was announced just before LegalTech, when industry minds were focused on product releases and all the usual pre-show hype. It warranted more than being just another leaf in that forest.
I spoke this week to David Fryer and to Greg Wildisen, Epiq’s International Managing Director, to find out more about David’s appointment and about De Novo. Read the rest of this entry »
I have referred more than once to the webinar which Nuix organised just before LegalTech with the title The Convergence of eDiscovery and Information Governance. I moderated it, and the panel comprised Craig Ball, Attorney and Forensic Technologist, Stephen Stewart, CTO for Nuix and David Cowen, Managing Director for The Cowen Group.
We ran it also as a session at LegalTech, and I did not really focus on the significance of the camera at the front of the audience. We were in fact being filmed, and the result is now on YouTube in four parts – the first is here, and the rest follow automatically.
I referred in opening to a comment made by one of the people who listened to the webinar, who thought that I should have let the speakers say everything they had to say about their subjects. Each of these panel members could comfortably fill an hour on his own and, as I pointed out, we had even less time for the panel session than we had had for the webinar. The only real challenge for a moderator running a panel of this calibre is to bring the session to a close on time and with all the slides covered; that occasionally requires a guillotine.
The European Commission has collected together information about its proposed reforms of the EU Data Protection Rules, including the press release of 21 January, the press conference with Vice President Viviane Reding of the same date, and a number of fact sheets, surveys, legislative texts and other information.
Vice President Reding has followed that up with an article on CNN called How Europe is Dealing with Online Privacy. Call me cynical, but if her “one-stop shop for businesses to deal with regulators”, and the employment of Eurocrats to run it, results in the promised reduction of administrative burdens and a saving of €2.3 billion a year for businesses then I will eat my proverbial hat. Read the rest of this entry »
Much of the proactive advice which companies need about eDisclosure and data security is aimed at IT departments who have the job of managing data, and at legal departments who have responsibility for the company’s potential eDisclosure obligations.
HR departments are often overlooked, yet they have responsibility for the contracts which define employees’ responsibilities and for initiating many of the investigations into the conduct of employees.
The ease with which information can now be created and disseminated via various social media outlets makes it the more important for HR departments to understand the threats which lie in the use of social media, and to know what can be done both to pre-empt them and to detect and investigate breaches of the law or of company policy. Read the rest of this entry »
Perhaps the only person who will understand my heading instantly is the judge whose Opinion in Da Silva Moore v Publicis Groupe is at the centre of eDiscovery attention this week. US Magistrate Judge Andrew Peck is as much an authority on Sherlock Holmes as he is on the use of technology in litigation, and will recognise the story of the eponymous horse and the strangely silent canine.
Well, that’s broken the first two rules of good web writing – follow an obscure heading with an opening paragraph which takes the reader yet further away from comprehension. What is the connection between horses, dogs and fictional detectives, on the one hand, and an important electronic discovery Opinion on the other?
Silver Blaze is a race-winning horse of whom are great things were expected. He disappears on the eve of a big race and his trainer is found dead. The following dialogue takes place between Holmes and the detective, Gregory:
Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”
On Friday afternoon, Judge Peck issued an Opinion and Order in the Da Silva Moore case in which he said “This judicial opinion now recognises that computer assisted review is an acceptable way to search relevant ESI in appropriate cases.” You will hurry, no doubt, to see what Recommind, the most vociferous proponent of predictive coding, has to say; this Opinion is important to them as it is to anyone else with an interest in reducing the costs of eDiscovery, and they are one of the more voluble users of social media to get their messages out. Nothing.
You know, perhaps, that Ralph Losey always writes on a Sunday; he wouldn’t miss an opportunity to write up an Opinion like this, would he? You find instead an article called Picking Battles and Knowing When Not to Speak; it has an animated version of Ralph, dressed in pigeon-fancier’s flat hat, braces and (apparently) nothing else, describing himself as a “happy guinea pig”, followed by a few worthy quotations and links. What is going on? Read the rest of this entry »
I am not going to try and compete with the Clearwell / Symantec writing team as it comments on developments in the Da Silva Moore v Publicis Groupe case, the first one in which the use of predictive coding, the most exciting eDiscovery technology development of our time (I speak generically here, not of any one product) is debated in front of one of the few judges who understands it and the contribution it can make to cost-effective eDiscovery.
I am, anyway, too busy banging my head against the desk after reading the Declaration of the plaintiff’s expert witness in support of their objection. How have we come to this? I give no view on the propriety of the Objection or on the content of the Declaration. I am just wondering what it has all got to do with the “just, speedy and inexpensive” requirement of Rule 1 of the Federal Rules of Civil Procedure, with proportionality, with the obligation of cooperation imposed by the rules and expressly required by the judge, and with the evidence on which this case will turn.
An article on EUObserver.com reports on a debate last week in the European Parliament which highlighted the conflict between US demands for data and EU privacy legislation.
The article’s title is Commission Downplays Parliament EU–US Data Privacy Concerns – “downplays” being Eurospeak for “brush it under the carpet and pretend it is not a problem”. Justice Commissioner Viviane Reding’s answer that a US law enforcement authority would have to use “existing channels of cooperation and mutual legal assistance agreements” to get data from companies in the EU does not reflect the view taken hitherto by those authorities when they make their demands. “Stand and deliver” better describes their approach.
It is not just US authorities. As an MEP pointed out, the “existing channels” do not help much when a US civil court requires the disclosure of data stored in the EU. Fears that US law could have “extraterritorial effect within Europe” and that European laws “could be over-ruled by third country laws” are legitimate fears as a practical and pragmatic matter – there is no need for US courts to assert expressly the primacy of US law when they can simply punish a party for failing to produce documents.
One MEP pointed out that it would be “ironic if it were easier for third countries to process European citizens’ data in their territory than for European entities to do so in Europe”. It is not really a matter of one being “easier” than the other. The data is processed in the US in possible breach of EU laws either because the parties and courts are unaware of the restrictions or because the parties take the view that the Scylla of sanctions is more palatable than the Charybdis of EU fines and other penalties.
As I have reported elsewhere, we are beginning to see an appreciation on the US side not only that the comity of nations requires respect for the laws of foreign jurisdictions but that a combination of cooperation, transparency and technology ought to allow a reconciliation between US demands and EU restrictions, with recent recommendations from both the ABA and the Sedona Conference to that effect. Read the rest of this entry »
Digital Reef is offering legal service providers the opportunity to make use of its SaaS processing and early case assessment tools on a revenue sharing basis. This should help LSPs who find themselves with more work than they can handle and who traditionally have the choice between struggling to manage it all or passing the work to someone else, with the risk of losing the client as well as the fee.
The Digital Reef service – the press release is here – allows LSPs to put their own brand label on processing which is actually undertaken on Digital Reef’s servers, which are capable of handling 17 Tb of data per day.
As I have written elsewhere, UK eDiscovery solutions provider CY4OR has recently acquired the business of eOrigin. That brought with it Nick Pollard as CY4OR’s new head of eDiscovery together with eOrigin’s role as a Digital Reef partner. Nick Pollard said of the new Digital Reef program:
“as a leading provider of Digital Reef to the UK market, we are excited about the innovations that the company is making. CY4OR is already rolling out a similar model in the UK which is generating a lot of interest amongst Litigation Support teams. We have the eDisclosure tools and resources in place now to offer our clients the software as a service (SaaS) model and believe it will enable law firms to reap rewards in an increasingly competitive market”.
This is one of a spate of Digital Reef announcements recently. Two press releases came out at the end of January, one announcing closer integration with Relativity and one about Digital Reef’s new predictive priority functionality. I knew about the latter – indeed I am quoted in the press release – but announcements made once LegalTech has started tend to get overwhelmed by everything happening at the show and in its aftermath (I still have one panel to report on, and want to come back to the one new application which I actually saw in New York).
These are free-standing developments, each with its own value for what Relativity’sAndrew Sieja describes as giving users “control to construct the best eDiscovery solution to meet their needs”. When the new analytics at the front end are added to the service offered to LSPs and to Relativity integration, Digital Reef seem to have an integrated business plan as well as a technology solution.
I intend to start periodic cross-links from here to my Google+ page to make sure that my posts there get picked up. The Google Plus posts are in no sense of lesser importance than what appears here, nor are they taking content away from the blog – I have done more blog posts so far in 2012 than by the same date in 2011.
They allow me quickly to cover a wider range of topics and, specifically, to point to other articles of interest with something slightly more substantial than a re-tweet. If many of them have a US origin, that reflects the quality, as well as the quantity, of the material which derives from the US. Much of it has application in any jurisdiction where electronic discovery/disclosure is required.
The present interest in predictive coding, in information governance, and in data protection and privacy, for example, are all things which ought to be seen important in the UK as well – and elsewhere. If Singapore suddenly seems to be in the news, that reflects what I am hearing anecdotally as well as what I read.
A subsidiary purpose is the improvement in the SEO (Search Engine Optimisation) of both my own sites and those to which I link. It may be a coincidence, but my daily count of page views on the blog has risen from last year’s average of 189 to 263 since I started using Google+
Applied Discovery has a double interest in the Da Silva Moore v Publicis Groupe case which came before Judge Peck just before Valentines Day. As a software provider, it offers technology-assisted review (which it calls “predictive tagging”) powered by Equivio->Relevance as part of its Leverage Suite – the press release from last August is here. Applied Discovery is also one of the best commentators on eDiscovery practice and the developments which matter to its clients, with weekly updates and good original content.
Both of these interests come together in an article called Did Judge Peck Send Us an Early Valentine? by Applied Discovery’s Ignatius Grande, which picks out points of interest from the published transcript of the Da Silva Moore eDiscovery hearing. It would be fair to say that many of the essential characteristics of a Valentine’s Card are missing – the words “Stop whining and stop the sandbagging. This goes for both sides. Get along.”, whilst definitely about relationships, are not what you would hope to find on the doormat on 14 February.
Ignatius Grande rightly picks out the strands of wider significance: it is important to hear a judge say on the record that technology-assisted review “certainly works better than most of the alternatives, if not all of the alternatives”; lawyers also need a reminder that the goal is not perfection but making the process “significantly better than the alternative without nearly as much cost”; the emphasis on the human input – technology assisted review “is only as good as the training that it gets”, and on the obligation to cooperate, are also important. Read the rest of this entry »
One is Da Silva Moore v Publicis Groupe et al., where the parties agreed to use predictive coding technology but have been unable to agree how it should be used. I have mentioned this case before, but am keeping my powder dry on it until we have the hoped-for written opinion from US Magistrate Judge Andrew Peck.
The second case is one I had not come across, Kleen Products LLC v Packaging Corporation of America, et al, where the discovery issues are being heard by US Magistrate Judge Nan Nolan. Here, one party seeks an order requiring the other to use predictive coding. The usual form of these disputes (going wider than any particular technology) is that Party A chooses a technology and Party B challenges its use, with the dispute generally coming down to how the technology was used rather than the particular choice of application. Now we have Party A seeking to compel Party B to adopt a particular type of application.
Matthew Nelson touches on a number of interesting points. One might be diverted by the plaintiff’s suggestion that predictive coding is akin to a car where the defendants want merely to use “the best available horse”. A couple of well-chosen Craig Ball quotations are brought in, one on court validation showing why I don’t seek to compete with Craig for colourful imagery (even I have never managed “court validation” and “steaming pile of crap” in the same sentence), and one asserting correctly that “the integrity of the process hinges on the carpenter, not on the hammer.” Read the rest of this entry »
The good-looking, self-confident male never does well in a Losey film. Don Giovanni is hurled down into Hell as Donna Anna has her revenge. Who can forget the handsome face of William (Michael York) as his girlfriend’s (another Anna as it happens) pointed heel stabs down into his face as she escapes from the smashed car in Accident. James Fox in The Servant, Alan Bates in The Go-Between – no, the men do not come out well in a Losey film, and the better-looking they are, the further they fall.
Sorry? Excuse me a moment. Oh, I see. Wrong Losey. They told me to knock out a few words about how the male character is beaten by the female lead in the latest Losey film, and I naturally assumed that they meant Joseph Losey. That image of the elegant heel in the bloodied face seemed just right. I saw Accident shortly after it came out in 1967 and it sticks in the mind somewhat. If I had stopped to think, I would have realised that it was unlikely that a man born in 1909 was still directing films anyway.
Back to the beginning. The good-looking, self-confident male never does well in a Losey film. From the moment the cameras roll in the the latest Ralph Losey thriller, it is clear that the arrogance of the male character will be defeated by the cool self-asurance of the female lawyer who is pitted against him as they argue about preservation and search efforts. Its title, Animation Showing How Not to Cooperate in an eDiscovery Conference may lack the snappiness of the other Losey’s film names, but you can’t have everything.
The male lawyers’ reiterated line “Take it or leave it” makes the lady (she’s bound to be called Anna as well) angry. She doesn’t settle for trivial revenge like Hell fires or stamping on his face – she is off to the judge.
Full marks to Ralph Losey for his latest animated way of making eDiscovery accessible.
My wide-angle lens is being repaired, so I have no photograph of the panel which Nigel Murray of Huron Legal moderated at LegalTech. There were eleven of us at the table for two consecutive sessions with the title A GC’s Nightmare – a US EDiscovery Request into Europe. The first part outlined the problems raised by the EU’s attitude to data protection and privacy and its conflict with US ediscovery requirements; the second part looked at practical ways to deal with the issues which arise. More than 140 people came to one or both sessions.
The panelists were chosen to give a rounded view of the legal and the practical problems from both sides of the Atlantic. Craig Cannon from Bank of America and Carter White of Lummus Technology Inc. represented the ones with the nightmares, the sleepless representatives of major US corporations whose business inevitably takes them into areas – and not just Europe – where US eDiscovery requirements conflict with more restrictive ideas about the use of documents and data. Amor Esteban of Hardy Shook & Bacon and Browning Marean of DLA Piper US offered the view from the US lawyers based in the US, whilst Farrah Pepper, recently moved from Gibson, Dunn & Crutcher to a role as in-house discovery counsel at GE had both viewpoints to offer. Natascha Gerlach is an attorney at Clearly Gottlieb in Brussels and she and Vince Neicho of Allen & Overy in London had the hands-on view from the European end. US Magistrate Judge Frank Maas of SDNY and Senior Master Steven Whitaker from the High Court in London gave the viewpoint of judges who deal with either end of the relevant requests. My role was to talk on the theme “How others see us” and to cover information governance. Nigel Murray was his usual urbane self, the conductor of an international choir whose singers were not guaranteed to sing to any pre-conceived score (there wasn’t one), but whose contributions covered every aspect of the problem.
With 300 words down just to say who was there, it would be foolish of me to try and summarise what each panelist said. Quite apart from anything else, whilst we had each chosen or been given our defined topics, there was no published running order. This allowed Nigel to follow themes as they developed, but since none of us knew who was going to be called next, this scribe had no realistic chance of capturing the contributions as they emerged – try doing this when you are on a panel, and you end up missing your own cue, conscious, perhaps, that you have just been asked a question in front of 140 people but with no idea what it was. Read the rest of this entry »
A speaker at a Nuix dinner prompts the thought that eDiscovery innovation lies in simply doing what the rules and codes of professional conduct require anyway. By chance, Ralph Losey has written on that subject this week. Risk is a challenge not a bar, and the lawyers’ duty to clients and the court lies in a cool and informed assessment of risk by people who know what they are doing and are prepared to stand by their judgements. Much the same applies to clients embarking on defensible deletion.
One of the few things which stuck in my head when I was an articled clerk (trainee solicitor as they are now more prosaically called) was a stern injunction from a senior solicitor to the effect that “there are no marks for originality in the law”. It was probably wise advice in a profession which had changed little since my father was an articled clerk and which, in many ways, has changed little since. I cannot recall what I had suggested to deserve this reproof – outsourcing document production to teams of monks recently made redundant by the dissolution of the monasteries perhaps – but it was easy then, as it is now, for a young incomer to mock the time-honoured ways of doing things. They soon kicked it out of us.
It is worth repeating a paragraph from my first report on LegalTech 2012, because much of what was in it derives from the two events which are the subject of this post – a dinner organised by Nuix and a panel which I moderated for them at the conference. The paragraph read:
Other subjects came my way: risk, and the sense that some lawyers, judges and companies are beginning to re-evaluate defensible deletion, their fear of sanctions, and the benefits of new technology, as the expense (the other half of the risk-benefit equation) continues to mount; innovation (in the true sense, not the lazy label “innovative” used as a grand way of saying “new”); consolidation amongst providers (though no one guessed how soon we would see the next acquisition); the marginalisation of law firms who ignore the way the wind is blowing; recruitment and training both of the young and of senior people transferring from other industries.
The guest speaker at the Nuix insight dinner was Frank Moss, former director of the MIT Media Lab, “a fantastic hotbed of no-holds-barred creativity, where scientists and students invent and experiment without any fear of failure”. Frank Moss disclaimed any deep knowledge of information governance or electronic discovery, but it quickly became clear that his ideas had application to any business – or, indeed, to any activity where received ideas edge out new ones. The well-known law firm principle “this is how we have always done things here” has no place at MIT Media Lab. Read the rest of this entry »
In my post Information Governance, UK eDisclosure and International eDiscovery in three days, I reported on a seminar which Terry Harrison of Hobs Legal Docs organised at HSBC’s Northern regional office in Manchester and which I spoke at. What I did not know when I wrote my account of the evening was that the post-seminar party continued until well after midnight whilst I was sleeping the sleep of the just at an airport hotel.
Hobs Legal Docs had just opened a new office in Manchester when we gave that seminar, and I now have the address details. It is at 4 Whitworth Street West, Manchester M3 5WY. The telephone number is 0161 832 6680.
I have the sense, and not just from Hobs, that solicitors (and, judging from our Manchester audience, some barristers as well) in some of the major commercial centres outside London are beginning to appreciate the opportunities opening for firms who can genuinely say that they can manage eDisclosure efficiently. Now that it no longer needs large teams, eDisclosure does not limit document-heavy litigation to big firms – armed with competent lawyers, outsourced technology and, perhaps, managed document review, smaller firms can take on large litigation and can meet much bigger firms on equal terms. Read the rest of this entry »
This is a good moment to pause a little and look around the eDiscovery / eDisclosure world. The wide range of topics which make this such an interesting field are all getting an airing at once. The stream of useful and relevant tweets is such that I had to turn it off to get anything done. If it appears to have a largely US flavour, much of it also has relevance in the UK and elsewhere.
I do not feel under any particular pressure to capture it all as it happens, and there are back-room things – the agendas for three forthcoming UK conferences and a White Paper, for example – which have some priority in terms of time allocation than the news stream which, if its elements are of importance at all, will still be so in a week’s time. My web site also needs some attention to logos and indexes. It is helpful, nevertheless, to list some of the pending stories, if only to head off polite suggestions that I may have missed them. Since the point here is speed, I will ignore my usual rule about hyperlinking to everything referred to.
My involvement in or attendance at some recent events will be covered shortly. Monique Altheim has released videos of the eDiscovery sessions we did at CPDP in Brussels. Nuix hosted a thought-provoking dinner at LegalTech which stimulated thought about the real meaning of “innovation” in eDiscovery. It has been said of the cross-border panels hosted at LegalTech by Huron Legal and led by Nigel Murray that “the substantive information conveyed was top shelf” and there is talk of a re-run. Data protection and privacy move back up the agenda anyway thanks to the draft EU data protection regulation. Read the rest of this entry »
It was Twitter, of course, which first brought the news that Guidance Software had agreed to acquire CaseCentral. The first tweet came so early that the Guidance web page announcing the deal was a blank placeholder; its page title confirmed that the story was true, but there was as yet no content. The tweets multiplied and the official Guidance Software announcement appeared shortly afterwards.
Gartner’s Magic Quadrant for eDiscovery Software, published in May 2011, opened with two “Strategic Planning Assumptions”:
By 2014, consolidation will have eliminated one in every four enterprise e-discovery vendors. By 2013, software as a service (SaaS) and business process utilities will account for 75% of the revenue derived from processing, review, analysis and production of electronically stored information (ESI).
Although the report was, as its name suggests, concerned with eDiscovery software vendors, the consolidation prediction was made in respect of the wider eDiscovery vendor market, implying, correctly as it has turned out so far, that we would see aggregation of the various components of the externally-provided eDiscovery process.
The Magic Quadrant itself appeared opposite the Strategic Planning Assumptions, showing Guidance Software as a Leader and CaseCentral amongst the Visionaries. Of those whose names appeared there, Autonomy had already acquired the digital assets of Iron Mountain by the time the Magic Quadrant appeared, and has itself since been acquired by HP (who was not itself qualified to appear in the Quadrant). Symantec has bought Clearwell. Epiq Systems had just increased its size and its range by the acquisition of Encore eDiscovery Solutions, extending both its software and its services portfolio, and has since added De Novo Legal which combines processing, hosting and review services. Read the rest of this entry »
Well, who would have thought that the big topic of conversation at LegalTech would be the weather? Keen though I am to import British ideas into US eDiscovery, the near-obsessive British focus on temperature and precipitation can stay at home. The subject came up thanks to the contrast between the balminess of this New York January compared with last year, when we needed snowshoes and crampons to cross 6th Avenue. Getting back to the UK was a different matter weather-wise, but we will come back to that.
The other generic ice-breaker at LegalTech is “Have you seen anything new here?”. None of us can actually remember ever seeing anything truly “new” at LegalTech, at least by the standards of an industry which produces ever more interesting and sophisticated technology throughout each year. The bar is set very high, and the question is the industry equivalent of the conventional enquiry after one’s health.
The problem – my particular problem, anyway – is illustrated by the legal IT PR who wrote to me as the show closed to ensure that I had all the information I needed for the article I might write about her client. What do you suggest I do, lady? Write about everything? Type out a big list of all the companies and people I saw and call it an article? Pick out some and ignore others on some subjective or arbitrary basis? I did in fact write about some of the new developments before LegalTech, mainly on my Google Plus site, and will pick up some more in due course, mainly by pointers to good summaries by others. My main purpose in going to LegalTech, apart from participation in a couple of panels, is to meet people.
At a conference last year, I overheard one person asking another about the best way to meet people at conferences. The answer given was “Follow Chris Dale around”. That is more than a little exaggerated, but I pass it on because its implication broadly defines what I do in between the formal events – I meet up with people, largely by serendipity, and find out far more than I would in the (necessarily fewer) formal meetings which require fixed time slots. As I say, I will point you in due course to some of the more structured accounts of LegalTech 2012, but for now I merely invite you to “follow me around” on what is largely a personal account of the show, though by no means a comprehensive one. This article is general in nature; I will write separately about the panels and other structured elements of the show. Read the rest of this entry »
For several years now, Nigel Murray, MD of Huron Legal in London, has organised what used to be called the British Brunch, now the Commonwealth Brunch. For many of us, it marks the opening of LegalTech.
What marks it out from the many other events taking place here is that it is non-partisan, and attended by a mixture of people from software and services providers, law firms and others for whom a Commonwealth origin, residence or place of business is the qualification for being there. It is also an event at which wives and children are welcome, and my wife Mary Ann and son Charlie came along too.
The photographs below if you the general idea, as well as showing (at least for those who know the people) that there is a strong UK contingent here again.
It feels, perhaps, like the final relaxation before we move forward to the trenches for tomorrow’s three-day battle. The Hilton here on 6th Avenue is quickly filling up with familiar faces. Many thanks, as always, to Nigel Murray and Laura Kelly for organising this much appreciated annual event.
It is barely a fortnight since I reported on Recommind‘s coup in appointing Nick Patience as Director of Product Marketing and Strategy. Since then, Recommind’s name has turned up more often than I can keep pace with. I put it that way because I try to leave space between multiple references to the same provider, which becomes difficult when a lot of separate stories emerge at once. Only one of the stories, a product announcement, is LegalTech-specific; the rest seem just to have happened along at the same time.
If I group them together now, that will this leave space for whatever comes along after LegalTech.
Axcelerate eDiscovery 4.3
The fact that Recommind is amongst the leaders (in time terms as well as in reputation) in the technology known as predictive coding, may obscure the fact that its roots are in broader information management software and that the predictive coding component is but a part of its overall eDiscovery offering. The technology originally developed for broader search and categorisation has two eDiscovery components, Axcelerate ECA and Collection and Axcelerate Review and Analysis, which between them perform the functions implicit in their names. Axcelerate On-Demand extends the same capabilities into the cloud and, as again its name implies, is available without in-house installation – like tomorrow, if you need it.
Axcelerate eDiscovery 4.3 introduces new seamless management capabilities across the entire process. The press release quotes Woods Abbott, Senior Manager of Legal Operation / eDiscovery at Raytheon, as praising not just the processing and workflow capability but, crucially, the sampling tools which are a big part of the battle to convince lawyers that they retain control of the decision-making. Read the rest of this entry »
AccessData was not in a hurry to bring out its all-new version of the Summation line of eDiscovery products. The company already had a 20-year history in digital investigations when it bought Summation iBlaze, Enterprise and CaseVantage towards the end of 2010. It was a product-line with a long history and a very large user-base and, when I spoke to them at the time, AccessData were under no illusions as to the work which would be needed to bring the product range up to date.
It must have been tempting to rush the job as new players entered the market, but AccessData resisted the temptation in order to make sure that, when it came, the relaunched Summation would hold its own with the competition. I have not seen it yet, but it looks as if they have made a thorough job of it. To quote from their own description:
Summation offers both comprehensive early case assessment capabilities – data ingestion, processing, culling, export with load file creation and first pass review – and final review features – search, annotation, redaction, production tools and transcript support – in one product. This integration means that users can move data from the ECA stage directly to final review without creating a load file, exporting or re-processing. In fact, all stakeholders from IT to in-house teams to outside counsel can efficiently and securely collaborate in a single platform.
In an ideal world, I would keep the week before LegalTech free. Product announcements pour out with accompanying (and welcome) invitations in advance to find out about the new developments (that is preferable, incidentally, to those who make big announcements and assume that I will pick up on them). The diary needs constant adjustment as I ditch optional LegalTech sessions in favour of fitting in meetings. My own LegalTech sessions (of which more below) require preparation. Computers, cameras, address books need preparatory attention, and reference papers must be copied somewhere accessible. A week away involves boring domestic details of shirts and shoes and suits, and you just can’t get the servants these days.
Just the week, all in all, to have a big webinar to moderate, a seminar to lead in the North of England and an invitation to speak at a conference in Brussels on three consecutive days. And in the middle of all that, the EU commission announces a re-revised data protection regulation just as I have finished reading the 116 page leaked version.
Two consequences follow. One is this, a compendium article (which I rarely do) pulling together multiple threads as an alternative to overlooking them all. The other is that I have undoubtedly missed things which I would normally have caught. For the avoidance of doubt (and conscious as I am of a rough duty of balance in what I write) the difference between things I have covered and things I have not written about is one of timing rather than any perceived priority of importance. if the news broke whilst I was in an aeroplane or under the Channel, then I may have missed it. Read the rest of this entry »
I am moderating an Inside Counsel live webinar for Nuix with the title The Convergence of eDiscovery and Information Governance on Tuesday 24 January at 1pm to 2pm EST / 10am to 11am PT / 6:00pm to 7:00pm GMT.
The panel members are Craig Ball, Stephen Stewart and David Cowen, whose details appear on the registration page.
Much of the eDiscovery discussion in 2012 is about applications and techniques for reducing the volume of discoverable information in the context of some triggering event, whether litigation which the company is engaged in or which it has reason to expect, a regulatory intervention, or an internal investigation. If this was not clear already, the pre-LegalTech spate of announcements about predictive coding / technology assisted review leaves no one in doubt about the importance of developing sophisticated and intelligent ways of culling down data.
That needs first-rate software tools, but it also needs the right people to make the right decisions about what to leave out and what must be kept. A set of skills has developed in the eDiscovery context which crosses the legal and IT boundaries and which includes both an understanding of the obligations and the ability to use search tools, analytic tools, and processing power to discriminate quickly and safely between important things and unimportant things and the shades which lie between them. Read the rest of this entry »
There is a meeting of LiST – the Litigation Support Technology Group – at Allen & Overy at 5:00pm tomorrow, Tuesday 24 January. This is a welcome revival.
The Litigation Support Technology Group is a UK think tank, formed in 2003 by a group of litigation support specialists whose aim was to encourage and develop a uniform approach to the use of technology in litigation. It produced drafts of a practice direction, a technology questionnaire, a data exchange protocol and a revised disclosure statement which did much to advance thinking about the procedures and documents needed to make electronic disclosure more efficient.
The self-given label “think tank” implied, and deliberately so, that LiST was a gathering of the knowledgeable. Its members were those with practical experience of managing electronic data and, specifically, of managing the expectations of opposing parties, separating contention about facts and issues from the mechanics of disclosure and exchange. Its work, and specifically its drafting experience, contributed significantly to the 2010 eDisclosure Practice Direction and Electronic Documents Questionnaire.
Vince Neicho of Allen & Overy who is, as I am, a member of Senior Master Whitaker’s working party which drafted the Practice Direction, has long wanted to revive LiST now that the practice direction is in the rules with more prominence and detail than its predecessor PD.
The aim is a steering committee approach, with members contributing to working groups designed to share experiences, to identify what works and does not work in the way firms work together, and to give members the opportunity to meet each other – it is very much easier to work with someone constructively if you have at least met them.
The criteria for membership are (and I quote) that “the candidate should be personally involved in the day to day practice of dealing with ESI for dispute resolution or regulatory purposes and be employed by a law firm, a Government agency or within a litigation support department (or similar) of a commercial organisation”.
The first meeting of the reinvigorated LiST is to be held tomorrow, Tuesday 24 January, at 5.00pm at the offices of Allen & Overy. LiST’s Honorary President, Senior Master Whitaker, will address the meeting.
Articles on search by OrcaTec’s Herb Roitblat are rare, but worth waiting for. I would much rather point you to his article, and to the articles by Ralph Losey to which they refer, than try and write them myself.
I have just been invited to contribute to a book about a subject which falls within my area of interest and competence, which would involve research and analysis of the kind that my training fits me for, and which would add lustre to my CV. I have declined the kind invitation with some regret. There is one overriding practical reason for this – there are only seven days in the week and I keep meeting the dog queueing for his breakfast on the stairs as I make my way to bed, so I am not sure where the extra hours would come from.
There is also a matter of writing style to be considered – the relatively free and easy prose which I use here and which is my “normal” writing style is not appropriate for a learned or academic work; self-publishing gives me the luxury of not having an editor peering over my shoulder, imposing deadlines, drawing attention to my omissions, and “correcting” my punctuation.
My niche is carefully chosen. I am not a journalist, so I do not generally have to work to somebody else’s timetable. I am not an analyst, so am spared the obligation to research and analyse primary material. The relevant case law involves practical things like breaches of what are, in truth, easily-understood rules rather than complex matters of contractual interpretation or tax statutes. I do not do system specifications, nor am I a user, so I do not purport to undertake the comparative analysis of one software application over another beyond a broad understanding of what each of them does. I am not a computer scientist or an expert in linguisitcs or statistics. My role is to pick out the essentials of all these things and try to dish them up in palatable form to a broad range of interest groups and skill levels, acting as a translator between people whose possibly deep skills in one area might exclude any knowledge of another.
I also have the significant advantage of belonging in a jurisdiction which does not make a religion out of the minutiae of eDiscovery procedure and the relevant technology. One of the reasons why English lawyers can be reasonably sure that the software they use, and the techniques which accompany it, are adequate for their obligations is that most of it has been through the fire of the US Federal Rules of Civil Procedure or the no less onerous requirements of US regulators. One of the consequences of the US burdens is an upward spiral of technological sophistication and related thinking, as technology first meets the challenges and then, because it exists, raises the bar set by courts and regulators and by those who make discovery demands of others. That spawns a high level of jurisprudential and scientifically-based thinking and writing, the existence of which gives comfort to the journeyman lawyer who may not understand it all but who is glad to know that somebody else does. Read the rest of this entry »
It is a particular pleasure to welcome London-based eDiscovery / eDisclosure provider Millnet as a sponsor of the eDisclosure Information Project. It is a company with which I have long-standing links and which has turned up in these pages from time to time, most significantly and recently for its involvement in one of the exercises which were the subject of my article Two predictive coding case studies emphasise time and cost savings.
Millnet has been around for more than 16 years. It began as a financial printing company, a business which continues to thrive along with reprographics and digital print. The litigation support function is led by James Moeskops whose past includes a stint dealing with graduate recruitment at one of the Big Four, so it is perhaps not surprising that he has a good eye for identifying the right people to support Millnet’s clients and to grow the business. I wrote recently about Charles Holloway, former litigation partner of whom I said:
Charles is a former litigation partner at a well-known firm of solicitors, and brings much needed legal gravitas (leavened, I should add, with much wit) to a market which risks missing its target through over-emphasis on the alleged magic of technology. The UK eDisclosure industry (and it is no different in the US and elsewhere) very much needs lawyers in it to act as a buffer between those who face the problems caused by technology and those offering the solutions. The Millnet blog, Smart eDiscovery [which Charles writes], is a regular and much-needed part of that translating mechanism.
That legal weight has just been supplemented by the appointment of John Lapraik, formerly a partner at Kennedys with responsibility for eDisclosure issues. John will provide eDisclosure and project management advice to clients as well is responsibility for Millnet’s internal processes. The addition of someone with relevant experience within a law firm is a sound move. Read the rest of this entry »
I have yet to do the necessary cross-linking between the various places in which I put eDiscovery information. At the moment, it makes more sense to push the stuff out there and worry in due course about making a cohesive whole out of it.
Various things come together here. One is that LegalTech New York starts on 30 January. Many providers of eDiscovery software and services make announcements before or at LegalTech, and any ambition to capture them all is doomed to failure unless one is content with a copy/paste approach and has nothing else to do.
I am doing two sessions of my own there (one on information governance with Nuix and a double session on cross-border eDiscovery with Huron Legal). There is the usual problem of trying to make sure that I meet up with as wide a range of people as possible, in circumstances where pre-booking them all (as they sensibly would like for the sake of their own diaries) necessarily limits the number of engagements which I can fit into a day and cuts me out of the ad hoc meetings which you get by just being around (you are not “around” if you are shut up in meeting rooms for three days). Read the rest of this entry »
The term “displacement activity” has a technical meaning in animal biology, something I am happy to leave to the animal biologists. The lay use of the term connotes some activity undertaken in order to avoid having to do something else which is both imminent and important. I spent most of the run-up to my College of Law exams, for example, writing stories and articles about things which interested me – anything to defer having to learn about trusts and torts.
I am fortunate that I eventually found a way to monetise my displacement activity, making a business out of writing stories and articles about things which interest me. Even now, however, it occasionally becomes necessary to focus on something inherently dull, and nothing can be duller than an EU regulation (or, come to that, anything else which emanates from Brussels – even its scandals make one yawn). I was not therefore thrilled when someone leaked the draft texts of the General Data Protection Regulation and the Police and Criminal Justice Data Protection Directive, because that imposed a duty to read at least the first of these. It runs to 116 pages in its English-language version, so it could, if you printed it, serve as a pillow when your eyelids start to droop, as they will about three pages in.
A quick skim took me to the usual bit which describes how many more EU bureaucrats will be needed to carry on the good work, and I closed it quickly in case I broke something in rage (in the interests of wider Anglo-EU understanding, I should tell you that the French for “pen-pusher” is “gratte-papier”). Read the rest of this entry »
Legal Technology News annually presents its LTN Innovation Awards for Outstanding Achievement by Legal Professionals in their Use of Technology. This year’s awards, to be presented on the first day of LegalTech, includes one to US Magistrate Judge Andrew Peck as Champion of Technology. The most obvious example of the work which won Judge Peck this title is his article Search, Forward (free registration required), which made a clear and unambiguous case for using technology where it is appropriate to do so to bring down the expense, time and uncertainty of electronic discovery.
My article Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat, reporting on a speech which covered the same ground, was the clear winner in terms of page views on my blog last year, passed on by those who recognised, as all of us did who were present at Carmel, that the ground was shifting under our feet, and in a good way, as he spoke.
His impact, however, goes very much wider than this one speech and article, and lies in countless appearances at seminars and on panels in the US and elsewhere, as well as the commitment to co-operative, proportionate and competent lawyering in his own court – shown most obviously in his William A Gross Construction case with its “wake-up call to the bar”. He also took part in my eDiscovery play in 2011 in both its New York and London versions, a stronger test of judicial character than merely of thespian talent.
What is important about Judge Peck’s role is that he is no tech-head, advocating the use of technology for its own sake. Like the other Magistrate Judges who are well-known in this area, what he says is firmly rooted in Rule 1 FRCP and “the just, speedy and inexpensive” purpose behind the rules.
Another of the LTN awards which catches the eye is the one for Large Law Firm which goes to Australian law firm Mallesons Stephen Jaques, a well-deserved recognition for the firm’s Applied Legal Technology Director, Michelle Mahoney, for her team and for a partnership which recognises the importance of technology in meeting its clients’ objectives.
Guidance Software has provided a link to a recording of a live webinar which went out to a large audience – perhaps not surprisingly given the subject-matter and the participants. Its self-explanatory title is Migrating to the Cloud: Navigating the E-Discovery Challenges.
Scott Carlson is a partner at Seyfarth Shaw whose practice is exclusively devoted to discovery and the issues it raises. I have personal experience of his eDiscovery knowledge because we have sat together as members of Guidance’s Strategic Advisory Board. Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software, was the moderator at the first webinar I ever recorded, and someone I have shared platforms with in the US, the UK and Germany.
This webinar, introduced by Guidance Software’s Russ Gould, considers in a very practical way the e-Discovery challenges which are faced by corporations who have moved, or are planning to move, data and applications to the cloud.
I have just written an article which, amongst other things, referred to the difficulty which eDiscovery / eDisclosure providers face in recruiting appropriately skilled and experienced talent for what is, for many of them, a market which grows almost weekly. There was nothing deeply perceptive in my observation that their only options are to recruit from rivals in the same business or to induce talented people to cross over from another industry sector.
There are no limits as to where good people might come from, although an ex-civil servant might perhaps find the hours, the urgency and the need to make judgements rather daunting. A good brain, agility of thought, a focus on real objectives and the ability to get on with others are the prime qualifications, although knowledge and experience of the industry is an obvious asset.
Looking at my headline for this article, I see that its necessary brevity includes two implied assumptions, neither of which is necessarily accurate. The “as” which connects the two halves of the headline (“Nuix snaps up… as 7Safe falls”) implies that one of the two events (and it could be either) was a consequence of the other, whereas this could be a coincidence (a similar point arose when Jack Halprin moved from Autonomy to Google seconds before the HP-Autonomy acquisition was announced). The shorthand expression “falls to” implies reluctance (the expression properly belongs in the world of hostile bids), whereas this may, for all I know, be the culmination of a long term strategy.
It is only when you come to write headlines that you see how boxed-in you are by the need both to catch the eye and to maximise the power of Google’s indexes. A completely different impression could have been given by reversing the order of the words – “PA consulting snaps up 7Safe as Jim Kent falls to Nuix as MD Europe” would give a completely different emphasis.
Back to the stories. Nuix is a fast-growing provider of eDiscovery, electronic investigation and information governance software. It has the same problem as every other major player in the eDiscovery / eDisclosure market – there are not enough good people out there with the appropriate skills to give clients the support and advice that they need. There is not time for them to grow their own and, in any event, the grey hairs of experience are in shortest supply. They can be found only by recruiting from rivals or from other sectors. Read the rest of this entry »
I bring a fairly jaundiced eye to some of the marketing by those who sell technology solutions to lawyers. This is not so much to do with the quality of the marketing materials themselves but more to do with their approach to the psychology of those to whom the marketing is addressed. To some extent, a mismatch is unavoidable: the technology pitch is that it saves lawyer time, and lawyers live by selling time; much of eDiscovery validation depends on statistics and probability, and lawyers are largely arts graduates; there is good reason for fear, uncertainty and doubt in the management of discovery and it is unsurprising that providers trade on this as part of their pitch, often at the expense of more positive messages.
Deeper fears are touched by the implication that technology can do certain tasks better than humans can do them. It comes across as a threat to jobs at a time when many lawyers are out of work already; it appears to mock the years of expensive learning and the large qualification debts; it seems to threaten the central role which lawyers have traditionally had in the litigation process as functions are increasingly delegated to what is seen as a black box, and are challenged by new business models. There is something in all of this, and the New York Times article of March last year Armies of expensive lawyers, replaced by cheaper software, stoked fears which certainly had some substance. 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 Chris Dale 
