Judges and automated coding tools for electronic discovery

I took part this week in a podcast called Will Judges Think It Is Okay To Use Clustering and Suggestive Coding Tools? which was led by Karl Schieneman of ESI Bytes. I was the token Englishman alongside US top-drawer participants Judge Grimm, Judge Facciola, and Maura Grossman of Wachtell, Lipton, Rosen & Katz, who is also Topic Authority in the Legal Track of the Text REtrieval Conference (TREC).

As its title implies, the podcast concerned the acceptability of technology like clustering and what is variously called “suggestive coding” or “predictive coding”. Karl used the term “suggestive coding” so I will stick with that. These technologies aim to reduce the volumes which must be subjected to this most expensive (and most inaccurate) method of making document decisions. The starting point, for a lawyer or a judge, is the need for competent, ethical, co-operative and proportionate discovery, and a recognition of the role which technology must play in this. It is technical stuff, as Judge Grimm observed at the outset of our podcast, referring approvingly to Judge Facciola’s observations in US v O’Keefe about what judges and lawyers may dare opine in the face of technological complexity and about angels fearing to tread. The volumes, the technology and the expected standards have all increased substantially since then.

You can listen to the podcast yourself, so I will not do more than list some key points which came out:

E-Discovery / E-Disclosure Predictions for 2011

Metadata, as we all know, is data about data. Perhaps next year we could have predictions about predictions – an article put up at about the beginning of November guessing what the various pundits will include in their list of predictions for 2012, based on their known interests.

My own, for example, are likely to include one about medium-sized firms taking work away from large ones, one about the e-Disclosure Practice Direction, one about the e-Disclosure implications of some pending legislation, one about US-EU privacy conflicts, a side-swipe at judges who fail in their duty to manage the discovery aspects of the cases, and a poke at the government, some civil servants or a government agency.

That is what I gave this year, anyway, as my contribution to Computers & Law’s seasonal collection of predictions. There are links to all the other contributions down the right-hand side. I am not volunteering, but it would be interesting to consolidate them into a Top 10 and review them at the end of next year to see how many of them came good.

I will not attempt an index of all the other sets of predictions made around the world which relate to e-discovery. You should not miss those put up by the Posse List, which thankfully declines to take the whole subject too seriously. I like in particular the prediction that “Browning Marean’s great-great grandchild writes e-book on the implications for legal holds.”

I think I am safe in suggesting that most of us in this field will be even busier next year. I do not aspire to beating the 150,000 miles which I flew in 2010, but who knows? I do expect to do more UK road and rail miles (I mean even more than I did in 2010, not more than 150,000 miles), largely as a result of my first C&L prediction, the one about medium-sized firms.

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Glad I am not going anywhere today

It is very beautiful here in Oxford this morning, but I am glad I am not going anywhere today.

Larger version

There is no bread in the shop. The car has been buried for two days and I am not sure I want to take it on the roads anyway.

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Not guilty of aiding and abetting over Christmas carol

In my shy, retiring and very English way, I have been busy disclaiming credit for things this month. Those of you who were at the Judicial Roundtable at Georgetown, or who read my account of it, will know that I felt compelled to take the microphone when the US judges were praising various aspects of the UK e-disclosure model. I said that we were happy to hear praise for the rules and the spirit of proportionality which they promote, but that I wanted to make it clear that the practice does not yet live up to the promise which the rules imply.

In the same spirit, I must stress that I do not deserve the credit given to me for Jonathan Maas’ spirited e-disclosure version of the Twelve Days of Christmas which appears on Charles Christian’s Orange Rag today  The idea, and all bar two of the words, were Jonathan’s. My only input was a minor point of scansion, and the suggestion that Jonathan was “aided and abetted” by me dilutes the credit which properly belongs with him.

There’s more to it than not wanting to share the limelight. I thought I had better look up the expression “aided and abetted”. One web definition says this:

Notice, however, that before any person can be held criminally responsible for the conduct of others it is necessary that the person wilfully associate himself in some way with the crime, and wilfully participate in it. Mere presence at the scene of a crime and even knowledge that a crime is being committed are not sufficient to establish that a person either directed or aided and abetted the crime.

It’s a risk management matter, really. On the one hand I might share in the royalties and be able to retire. On the other hand, if Paul Chambers can get a criminal conviction and £3,000 in fines and costs for a 140 character tweet, God knows what the CPS will make of a 12 verse poem. Pro rata to word-length, my share of the royalties would be 1/1717th of the gross receipts and the financial penalty would be £52,157.15. My risk assessment suggests that I forgo the chance of royalties and deny that I aided and abetted.

Thank you, Jonathan, anyway, for brightening up a dull Friday.

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Avoid bringing the company to a halt when collecting data

If, as I do, you go round law firms encouraging them to consider the proper handling of electronic data, you realise that it is very hard for them to visualise what actually happens when it becomes necessary to collect documents and other data for litigation, regulatory purposes or other investigations. It s no different within organisations who have not yet had to undertake such an exercise.

I am not here talking of deep technicalities – the lawyers do not really want to know how the technology works, whether at the collection stage or in subsequent culling and review. What is omitted from most of the supplier websites, though, is some idea of what the implications are for the company once the lawyer, whether in-house or external, has put the phone down having set the collection operation into motion.

An article by Victor Limongelli, President and CEO of Guidance Software, is called When it comes to collection, the OS is not your friend, and is concerned primarily with issues such as collecting open files whilst relying on the operating system to manage the collection. Along the way, however, it illustrates the practical point that, however important the reasons for the collection, you cannot bring the organisation to a halt whilst the data is collected. Executives must communicate with each other and with the outside world; a salesman deprived of the use of his e-mail is a wasted resource.

Open files are not the only problem. Before you commission a collection exercise, it is necessary to specify that the interruption to the business will be minimal and that the collection will include not merely those working at their desks, but also those who are travelling or in different time zones.

It is bad enough if you do this as a one-off or rare exercise. What if it is or might become a regular occurrence? I have just published an article about the UK Bribery Act 2010. This does more than merely add yet another implication to the existing list of factors which may make data collection exercises a more frequent event, but is (in words taken from the Huffington Post article referenced in my article), “the new international gold standard in anti-corruption”. Furthermore, the Act extends to all commercial companies, not just the larger ones. Time to have a process, perhaps, a standard way of reacting to demands for documents quickly, for collecting everything, open or not – without bringing the company to its knees whilst you do it.

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Some resources on the UK Bribery Act 2010

I mentioned briefly in my report of IQPC in Munich the lucid explanation given by Vivian Robinson QC, General Counsel of the Serious Fraud Office, of the implications of the UK Bribery Act 2010. The aspect which interests me in particular is the defence in paragraph 7 (2) of the Act that a company “had in place adequate procedures designed to prevent persons … from undertaking such conduct”. I suggested in my Munich article that companies who had hitherto felt able to ignore the costs and risks inherent in inadequate information management procedures might like to think again.

I will write more fully about this in due course. I thought it might be helpful for now to collect together some of the resources which have come my way about the Bribery Act and its implications.

Start with the Act itself and with paragraph 7, headed Failure of commercial organisations to prevent bribery, which defines the offence and the “adequate procedures” defence.

An article by Ben Kerschberg in the Huffington Post is called Why corporate counsel must implement stringent corporate anti-corruption policies in 2011. It refers to both the US Foreign Corrupt Practices Act (“FCPA”) and the UK Bribery Act and describes the latter as “the new international gold standard in anti-corruption”. The article also summarises six principles set out by the UK Ministry of Justice in an easily digested form. I have not seen the detail behind this, but Fulbright & Jaworski apparently suggest  that 11% of US respondents believe that the UK Bribery Act will impact the way that companies operate.

The SFO’s own website section on Bribery & Corruption includes a webcast interview with Vivian Robinson.

One of the best sources of constantly updated information about the Bribery Act is a website called thebriberyact.com maintained by Barry Vitou of Winston & Strawn’s London office and Richard Kovalevsky QC. You can follow them on Twitter as @theBriberyAct and can subscribe to their newsletter from the website.

I am booked to do a breakfast seminar for Iron Mountain with Barry Vitou in mid-February – more details to follow.

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Don’t believe everything you read in the papers

Mark Twain said “The report of my death is an exaggeration” when his obituary was published prematurely. Rudyard Kipling, in similar circumstances, wrote to the offending magazine saying “I’ve just read that I am dead. Don’t forget to delete me from your list of subscribers.” The suggestion that I have given up writing this blog is (as you can see) similarly untrue – a case of mistaken identity. The other one is said to have tired of the back-biting endemic in his line of business.

Some of the articles I write never get published, which may sound strange coming from one who has only to press a button marked “Publish” to push his words out into Google’s indexes. Some subjects prove less interesting than I expected, and if I cannot even interest myself, it seems unlikely that anyone else will want to read the result; some just don’t fly – I cannot catch the right tone or voice; some will offend without purpose – I don’t mind offending people (which is not necessarily the same as being offensive to people), but there ought to to be a reason for doing it.

I wrote an article a couple of months ago based on my observation that electronic discovery providers were beginning to snipe at each other again. The recession quietened the back-biting a little, and I had wondered if there was an element of solidarity in the face of shared adversity. I began, though, to get reports of an increase in bitchy comments (don’t think that being stuck in my ivory tower in an English provincial city cuts me out of the gossip), and heard more of it directly. This face-to-face bitchery is additional to the polished barbs which fly across the internet as people in rival companies, with greater and lesser degrees of subtlety, challenge each other’s claims.

I don’t like the back-biting for various reasons, not least because it undermines the idea, which I do my best to promote, that there is a mature market of healthily competitive products and services for the users to choose from. I don’t like it because it is hard enough to explain the benefits of the broad concepts to a non-technical audience without the the issues being clouded in this way. I don’t like it because there is limited bandwidth anyway to get positive messages, both individual and collective, out to possible buyers. And I don’t like it because the most usual reaction to campaigns of this kind is the “plague on both your houses” approach which is the common feeling aroused by the meaningless posturing of political parties (“a plague on all two-and-half of your houses” we would have to say in Britain, I suppose). It is why people do not vote. In Britain, it makes us think of the bitter fights between two down-market airlines – “there is no settling the point of precedency between a louse and a flea” as Dr Johnson put it, and as I feel when I ignore the squabbling rivals and cheerfully pay BA’s higher price to avoid them both. In our market it encourages people to say “Sod the lot of you, I’ll just print the documents”.

Webinars from ZyLAB and LDM Global

I do not catch the news of all the webinars which take place about e-discovery / e-disclosure. Their announcements fly by on Twitter or elsewhere and are gone before I can pick them up. Two of them came by today, and I thought I could do a quick note about them in less time than it would take to add them to my ToDo list – they both happen on Thursday, so if I don’t do it now they will have happened.

One is from ZyLAB and is called The lessons learned from e- discovery sanctions in 2010. It takes place on Thursday 16th December at 1:00 pm EST and features Seth D Rothman, Partner, Hughes Hubbard & Reed LLP and Johannes Scholtes, Chief Strategy Officer, ZyLAB. Registration

The other is UK-based and is presented by LDM Global. It is called Quantifying the Cost of eDislosure and features LDM Global’s in-house counsel Don MacFarlane. It will cover the subjects which you read about here – the new Practice Direction, the Jackson review, e-Disclosure cost drivers and estimating and managing costs. It will take place on the same day, 16th December, at 4:00 pm GMT. Registration

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Predictive coding and defensibility

An article called The Red Herring of Defensibility and Predictive Coding by Craig Carpenter of Recommind on the Inforiskawareness site draws attention again to the technology generally known as “Predictive Coding”. Craig can fight his own corner as to the merits of Recommind’s technology versus, say, Equivio>Relevance – anyone interested in speeding up document review should look at least two implementations of prioritising software.

I say that because whilst such technology is not necessarily easy to describe to those unfamiliar with it, its benefits are instantly obvious when you see it. One might add that anybody not interested in at least considering one or more of these solutions might usefully try and articulate the reasons for ignoring it – I will be happy to host a debate.

From my experience of talking about it (and I moderated a panel in Singapore recently with a star panel from Recommind, Epiq Systems, Nuix and Kroll OnTrack which covered various aspects of automated review) the chief concern is the one which Craig identifies and which is generally labelled “defensibility”. I prefer to think of this as “Am I doing my job properly by using such technology?”

The focus when you look at such things is not so much what the algorithms are doing, still less how they are doing it, but whether you can follow in their footsteps, for example by sampling, to satisfy yourself both as to what has been included and as to what has been left out by the process.

This is by now a mature technology, and one which is available for users far less exalted than those identified in Craig’s article. How big does a case have to be before there is a value in having a means of prioritising them, that is, putting the most important documents at the top of the pile, so that the best-qualified lawyers can look at them first? Not necessarily enormous, I would say.

There is much more to write about this subject (I am in fact doing just that at the moment), but Craig’s article gives you the flavour of the subject.

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The cost of data security breach notifications

At first sight, the publication on 10 December of an article headed Data security – is Europe still lagging behind the US? brings a wry smile here. We are used to US articles speaking in condescending terms about everything from our teeth to our discovery processes, so it was faintly amusing to see such a heading in the week after the US managed to mislay so much diplomatically sensitive material.

The article is written by an insurer with an interest in encouraging awareness of data security risks, but that does not invalidate the message that companies must understand the potential costs. The article focuses on the cost of complying with the data breach notification requirements, particularly those of the US, when private information has been compromised. It does indeed seem anomalous that the privacy-conscious EU should be behind the US (at least from the perspective of an insurer) in facing up to the risk of security breaches. The article refers to “the lack of any uniform regulatory status of notification requirements” in the EU as being a reason why European companies are “lagging” in this respect. One might expect that lack of uniformity leads to an increased risk, so I am not sure that that is the cause of the disparity when it comes to buying cover.

It may be that EU companies have weighed the risk and decided advisedly that their risk profile is not such as to warrant the purchase of cover. It is also possible that, with money tight, budgets are being spent on reducing the risk than in insuring against the consequences of breach. A further possibility, and one which I favour, is that few companies have undertaken the risk assessment which sets the burden of compliance with security regulations against the cost of insuring against failures to comply.

IQPC Exchange in Munich: Information Retention and eDiscovery in Europe

The civil law jurisdictions of mainland Europe have no discovery tradition as it is understood in common law countries like the US and UK. The IQPC Information Retention and eDiscovery Exchange in Munich was an opportunity for corporate counsel to find out what matters, why it matters and what to do about it, as well as to meet service providers who can help them. The “adequate procedures” defence given by the UK Bribery Act sets a target which acts as a spur to the initiation of pre-emptive measures regarding information management.

Any discussion about electronic discovery in common law jurisdictions comes freighted with history, not all of it helpful. Common law discovery rules require the exchange of documentary evidence between parties to litigation. Our definitions vary, and our rules, case law and practice can produce different results; there may be more (the US) or less (the UK) skirmishing in advance as to the proper scope of discovery, and different jurisdictions have different ways of measuring compliance and of punishing defaults. The end result, however, is that a lot of documents are handed over. I may have strong views on how we should go about this and about how we can reduce the volumes in play without any risk to justice, but I will fight to defend the principles of common law discovery.

Civil jurisdictions, such as those in Europe, have none of this. I simplify for the sake of brevity, but the general approach in these jurisdictions is that the court decides what documents it needs to reach a conclusion. Those who seek other documents must specify them with a degree of particularity which effectively requires that they can say exactly what they are looking for.

The privacy and data protection laws which limit what you may hand over are less onerous when viewed in the context of this civil framework, for the fairly obvious reason that the discoverable volumes are smaller. It becomes easier to understand the EU Commission’s attitude to the impact of privacy restrictions once you appreciate how little is exchanged. This is the world for which the data protection and privacy laws were invented – Europe not only has incentives for minimising document exchange derived from its political history, but has no tradition anyway of handing over documents in civil proceedings.

US lawyers tend to see an obstructive Europe standing in the way of legitimate demands for information. It looks rather different from the perspective of a French or German company which, with no discovery tradition, finds itself under siege. Its links with US companies, whether as a parent, a subsidiary, sister company, or as just as a business or trading partner, bring demands for US-style discovery which appears to recognise no jurisdictional limits. A range of US authorities claim both regulatory and criminal rights over their documents. The EU has its own regulatory authorities and an unquenchable zeal for interference. There is proactive assertion of the rights of the individual against the state and against corporations. On top of all these external pressures comes the recognition that we cannot just go on collecting information at the rate at which we can now create it – a business incentive added to the external factors.

All this gives a different flavour to e-discovery conferences in mainland Europe, even where the organiser (in this case IQPC) has a well-established London conference with almost the same title, and where many of the speakers are the same as those I meet everywhere else. The Munich event was, in IQPC parlance, an “Exchange” rather than a “Summit”, which means that the corporate counsel (who are the main audience) have pre-arranged meetings with suppliers whose offerings have been pre-matched to their expressed needs. The impression I got from speaking to both providers and delegates was that there was a high compatibility rate. The Exchange format also provides conventional speaker and panel sessions plus the opportunity to mingle and talk in the gaps and over meals. If my primary reason for going to these events is to speak at them, I am equally interested in meeting informally with delegates and suppliers, with as much emphasis on listening as talking.

To the Varsity Match with FTI to watch Oxford win (and other things)

I went yesterday via Terminal 1 at Heathrow to the Varsity Match as a guest of FTI, where Oxford beat Cambridge 21-10. The last time I watched rugby at Twickenham was 4 November 1967, when the Queen nearly ran me over.

That is a paragraph which raises more questions than it answers for many readers. What is a “Varsity”? What is “rugby”? Who on earth remembers precisely where he was 43 years ago? Oh, it’s that bloke who is always at Heathrow – but what is he doing there on a journey from Oxford to south-west London? How does a homicidal head of state come into it? At least the name FTI means something, so let’s start there.

FTI Consulting is a large international advisory company, whose business segments include FTI Technology. FTI Technology owns well-known discovery brands, such as the review tool Ringtail Legal and the processing tool Attenex Patterns, and has developed other products and consultancy services around them. It therefore competes in the same marketplace as both the software-led and the consultancy-led e-disclosure / e-discovery vendors in addition to its wider consultative role, something which is often overlooked by those who are short-listing e-discovery providers.

FTI Technology is amongst the sponsors of the e-Disclosure Information Project, which gives me the opportunity to hear and then write about a wide-range of discovery-related topics. Coming up, for example, is a piece about a paper which FTI has commissioned from RAND on eDiscovery in European Countries, which ties in with FTI Investigate, FTI’s recently-launched global investigations initiative.  I have been speaking on panels on US-EU data collections in both the US and Europe recently, and the subject is one which matters.

Clearwell White Paper: the new Practice Direction and e-Disclosure

Clearwell Systems has published on its website a White Paper which I co-wrote with them with the title The New Practice Direction and e-Disclosure: Best practices for Complying Proportionately (registration required). Its purpose is to set out recent developments in UK electronic disclosure and to show how Clearwell addresses the requirements which arise as a result.

I can give you the flavour of it by quoting part of its summary:

If you take together the outcome of the cases mentioned above, the requirements of the Practice Direction, and the model for case management provided by the Goodale decision, you see a requirement (and it is a requirement of competence and proportionality as well as a formal requirement of the rules) that parties to litigation assemble and exchange sufficient information before the case management conference to enable themselves, their opponents and the court to make the “proportionate and cost-effective” decisions needed to control electronic disclosure. A part of achieving this goal are the four main considerations laid out in the Practice Direction and summarised above.

Before you can make decisions about narrowing the scope of disclosure, you must know what you have got, be able to evaluate which of it is worth picking out for full review, and be equipped to debate value against cost with opponents. The next section of this paper considers how this might be done as a matter of best practice using Clearwell Systems’ software.

Premonitions of what was to come

I have no idea what is happening in this photograph:

That is not strictly true – I know that it was taken at IQPC in Munich last week just as I was about to moderate a panel on data protection with Senior Master Whitaker and Denise Backhouse of Morgan Lewis. I know too that everything was prepared – slides in order, confident of my subject, panel present and correct, audience in its seats, right country, trousers on, all the standard things to run through as a panel is about to begin. I had slept well, drunk little and felt fine. So why am I clutching my head?

Perhaps I had subliminal premonitions of things which awaited me – of the next day’s take-off in blinding snow, of the urgent demands by conference organisers for next year’s session topics which would hit me before I had written up this year’s, of the e-mail which observed in a non-specific way how interesting it is that my web site looks different in every browser when I thought I had fixed all that, or the letter from my accountant demanding last year’s figures which I would find on my return.

I was probably in fact just pushing my glasses up as we were about to begin. The session seemed to go well, and the conference as a whole was useful and interesting. A report follows shortly.

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International discovery, sanctions, ethics and US-UK comparisons at Georgetown

I was, I think, the only UK speaker (or, indeed, delegate) at the Georgetown Advanced e-Discovery Institute. If the primary reason for going was to talk about US-EU differences, there was progress made too on the continuing US-UK dialogue about our respective disclosure rules and practice. There is two-way value in seeing how others see us.

A great deal of ground was covered, much of which illuminated the divide between US and UK practice and procedure. I make no apology for the fact that the result is a rather longer article than my usual ones.

Introduction

The Georgetown Advanced e-Discovery Institute is a polite, learned event, some of whose sessions, one feels, may actually change things, not merely report or comment on them. There is certainly a mood for change, in the sense that no-one involved in US eDiscovery believes that the present approach is sustainable. An outsider sees what appear to be obvious places to start which inevitably centre round the points of differences with one’s own jurisdiction and, indeed, the UK rules came in for much positive comment, as I report below. We in the UK, in turn, need to raise the level at which we discuss the issues, and get more people, particularly judges, to engage in that discussion in the manner so impressively displayed at Georgetown. We might then see a convergence between our rules and the way they work in practice.

Any attempt to translate these thoughts into positive recommendations founders on deep cultural differences plus the knowledge that whilst the UK rules may be fit for their purpose, the practice has a long way to go. Do US lawyers and jurists bang on so much about ethics and keep each other in line with sanctions because they are more ethical than we are or less so? Do parties collect so much data because a) they really think that proportionate justice is to be found that way b) because the fear of being sanctioned has driven all reason out of litigation or c) because the lawyers and technology providers make a lot of money that way? Or is it just that the wheel is going round so fast – technology catching up with volumes and driving expectations – that no-one can stop it now?

And is it presumptuous of us from the UK to accept praise for our rules and for the proportionate spirit behind our rules, when so few UK judges take e-disclosure seriously, when parties in big UK cases can still assert that the disclosure of electronic documents is ipso facto disproportionate, and when we have just had to fight a long hard battle to persuade our Civil Procedure Rule Committee even to accept that the subject is worth raising?

Whilst the English say “electronic discovery is something Americans do, and look what a mess they make of it”, Americans say “England is two years behind the US”. Well, I for one will not disparage the US approach any more severely than they do for themselves, and if a two-year lag saves us from the worst excesses of US discovery, then can we have longer please? The reality is that we can both learn from each other.  The dream combination, perhaps, would be the rules of England & Wales managed by the array of US judges who were present at Georgetown. My view is obviously a partial one.

I will try and pick out the subjects which have most relevance across the jurisdictions, either because there are parallels, or because their absence is itself a matter of note.

Catching an eyeful in Leeds and a snowfall in Munich

The paucity of posts lately may lead you to think that all is quiet on the e-disclosure / e-discovery front. It is in fact a symptom of the opposite – there has been more than enough to keep me amused, and on things which seem to point to an increase in e-disclosure activity. My side-interest in civil liberties has provided a diversion, and I took a daring Saturday off to go to Leeds for a Phoenix Fall gig.

I have recorded October’s trips to Washington, Canada and Singapore. November has brought a London conference and one in Washington which I have yet to write up. I am just back from Munich for IQPC’s Information Retention and e-Discovery Exchange which I will also write up shortly.

These trips are the icing on a cake whose main ingredient is domestic and below the surface. I have been to a couple of major regional cities to talk to firms with the potential to capture work from larger but less agile players, and done the same with some London law firms. The expressed motive behind their invitations is to hear about the Practice Direction and Electronic Documents Questionnaire, which gives me the opportunity to suggest to solicitors that we have a window in which we can shape e-disclosure as we think it should be. The window will close if we start seeing judgments which apply old principles to new problems.

You will see shortly from my pending report of an impressive judicial panel at the Georgetown Advanced e-Discovery Institute that the developments in England & Wales – the Practice Direction, the Goodale judgment, the Birmingham costs-management trial, the spate of cases – are exciting attention in the home of electronic discovery; all we have to do is make the practice conform to the framework of rules which others are beginning to envy. If there is plenty to fear (have a look at these cases, for example), there is also opportunity to capture work from others and to offer new skills to clients.