Welcome to Digital Reef as a sponsor of the e-Disclosure Information Project

I am very pleased to welcome Digital Reef as the newest sponsor of the e-Disclosure Information Project. This news comes in as I am packing to leave for LegalTech and you, and they, will forgive me for giving the briefest of notices to draw attention to their arrival on these pages.

Their own description of themselves will serve as a good summary introduction. It reads:

Corporate, legal, and IT organizations use Digital Reef for the fastest way to reduce the time, cost and risk associated with locating, organizing and governing information for eDiscovery, compliance, records management or proactive file management/ migration.

I will be meeting up with them (again) – this relationship has not sprung up from nowhere – at LegalTech in a day or two, and will be able to write a more thoughtful piece then.

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Guidance Software adds forensics and ediscovery for iPad and iPhone

Guidance Software, best known in the e-disclosure / e-discovery world for enterprise network collections with EnCase eDiscovery, has announced a new forensic tool for the Apple iPad, iPhone 4 and iPod Touch. Encase Neutrino also handles Android 2.1 and 2.2.

An iPad may seem small fry compared with the enterprise servers which hold the bulk of a company’s data. The iPad is, however, increasingly the first tool of choice for many executives – it is said that one in five Americans plans to buy one over the next six months, on top of the many who have one already. The volumes on any one iPad are relatively small, but it tends to be immediate in the sense that this is where the employee was working yesterday. It is also right to point out, as Guidance Software’s Frank Coggrave does in this article, that each iPad potentially contains 64 GB of very mobile storage.

It is also interesting to see that IT security departments, who are not unreasonably resistant to the ad hoc addition of external devices to their precious networks, are having to bow to the inevitable in the face of such widespread usage, another point made by Frank Coggrave. When IT departments have spent years trying to encourage user adoption of new technology, they have found it hard to stand in the way of such spontaneous user demands.

Apple products have a way of raising challenges. Giving a talk to lawyers recently, I explained that my iMac desktop had a virtual Windows PC inside it. The word “virtual” obviously passed some of them by, and one could see a mental picture forming of a traditional Windows PC case somehow shoehorned into the slim iMac. What I meant, as I went on to explain, was that you can run Windows within a suitably specified Mac, with its own applications and, potentially, a great deal of data, all invisible to those who were not familiar with the concept of a virtual PC. Forensic data collection is not a game for the amateur.

I am not quite ready to abandon my conventional laptop in favour of the iPad, and I will take both to LegalTech next week. I strongly suspect that, by the end of the year, I will be leaving the laptop behind on such trips, and if anyone needs to collect my data, they will have to do it off my iPad, as well as finding the virtual PC lurking in my iMac.

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What the Trilantic-Huron combination means for clients

Well-known UK litigation support provider Trilantic was acquired by Huron Consulting Group last November. I went to see Trilantic’s Nigel Murray to find out how the clients will benefit from the combined fire-power of the two companies.

Although Trilantic seems to have been part of the UK electronic disclosure scene for ever, it was in fact set up only in 2005. The founder and managing director Nigel Murray, however, has been in the industry since it began – he and I started at about the same time. Electronic discovery has changed somewhat. Then it involved scanning paper and coding documents by hand; it generally required a capital purchasing decision and the employment of staff to run in-house systems; it had yet to be renamed “disclosure” in the hope that relabelling would somehow make it better. Of all the changes, the only one which most lawyers readily grasped was the change of name – lawyers are always good at terminology.

They can be forgiven for being confused about the provider market, which first diversified, then consolidated: some providers specialised in the collection of data; others had specialist applications for processing the data or for reviewing it, whilst others offered consultancy and project management. Companies broadened out from their original starting points by expansion or acquisition: collection companies now offer processing and review applications and host the data on a transactional basis; specialist software companies enhance their products with consultancy services; some companies offer “end to end” products and services whilst others remain best known for particular niches. Downward pressure on costs makes price a less useful discriminating factor than it used to be, whilst any one software application looks much like any other to the novice. It is hard enough to keep up for those of us who have watched this market evolve and develop. It is extremely difficult for those who approach it from scratch.

Trilantic has always been a front door to a range of software and services, with its own staff, infrastructure and services, but calling on a wide range of others’ specialist skills or applications appropriate to the clients’ needs. Its web site inevitably draws attention to its ability to handle major work for big clients, but that ability scales down to allow it to do smaller jobs, whether as a continuing provider of choice for repeat business or for one-off jobs. Nigel Murray may spend a lot of time at international airports, but much of Trilantic’s business remains domestic and the company has always felt accessible to those facing their first e-disclosure case.

New web sites and a case study make good marketing

Although the nuts and bolts of what I do involves e-discovery / e-disclosure rules and the crossover between rules and practice on the one hand and technology on the other, my real interest lies in marketing, with a self imposed brief to market the concepts and benefits of ediscovery / e-disclosure as well as those who provide services. My biggest article in the last few days (see Twitter, bribery and 37 corporate counsel in a virtual bar ) has been about that rather than about either rules or technology.

I have always had a soft spot for the blog maintained by forensics experts CY4OR because they provide automatic links to my own blog posts. They never sought my permission to do this, nor did I ask them to, but I certainly don’t complain at this unsolicited outlet for what I write.

I have had no cause to look there recently, but a couple of recent tweets have taken me to CY4OR sites – it would be interesting, would it not, to get them to track how many of the visits to their sites came from those tweets?

The first tweet took me to CY4OR’s new e-disclosure site which shows how far CY4OR has moved from its roots as a pure forensic expert. It has partnerships with Clearwell and Nuix to add a processing capability to the stage which follows the collection. I am obviously interested in the mere fact of those partnerships, since both Nuix and Clearwell are sponsors of the e-Disclosure Information Project.

My other interest, however, lies in how well a web site guides a potential client through the range of services on offer – the alliances of skills and partnerships make perfect sense to those familiar with what these products do and how they fit into the process, but it is not so easy for those coming new to e-disclosure. I judge a web site by the ease with which an e-disclosure virgin could find out what services are on offer and how a provider can help.

Cross-Border and Multi-National eDiscovery at LegalTech from FTI and Epiq

I have written already about those sessions at LegalTech 2011 in New York which have a UK element in them (see Strong UK presence at LegalTech 2011). As I said in that article, it is impossible to list, let alone expand on, every session which is likely to be interesting or which involves someone I know.

As always, I marked down the sessions I wanted to attend but have gradually had to concede them as the time needed for meetings, and for the two sessions which I am moderating (Monday at 14.00 and Wednesday at 12.15 since you ask), began to exceed the total time available. I have managed to cling on to the Tuesday morning sessions.

Last year at LegalTech I was involved in two panels on multinational and cross-border disputes, a subject of inexhaustible importance to US lawyers. With a bit of rushing about, I should be able to attend at least parts of the three overlapping sessions which cover cross-border matters this year on LegalTech Day 2.

I have already mentioned the two sessions run by Epiq Systems, Navigating the Challenges of Cross-Border Regulatory Investigations at 9.00am on Tuesday, and Managing a Global Review while Minimising Risk at 10:45am. Between them, they include three UK people with whom I speak regularly at conferences, Vince Neicho of Allen & Overy, Professor Dominic Regan and Senior Master Steven Whitaker as well as other people worth hearing.

Overlapping them, however, is a session run by FTI called Multinational Discovery: Privacy and Process. Joe Looby, Senior Managing Director at FTI, is the US lead on FTI Investigate , which pulls together the human and technology elements needed for rapid investigations across national boundaries. The thorny problem there, apart from the logistical one, is often the conflict between the need to extract as much information as quickly as possible and the restrictions of local data privacy laws. I interviewed Craig Earnshaw, FTI Managing Director – Technology in London, about this recently and am looking forward to this session to round out a paper which want to write on the broad issues as well as on FTI’s specific service.

The FTI Investigate web page has some case studies which I commend to anyone who is interested in this area. I have mentioned before the  RAND Europe Two-Part Report: E-Discovery and Legal Frameworks Governing Privacy and Data Protection in European Countries which came out in October and which gives a good overview of the issues arising in the EU. That can be found here on FTI’s website.

The other main draw for this session is Amor Esteban of Shook Hardy Bacon LLP. I did a panel with him at the Georgetown Advanced Ediscovery Institute (see  International discovery, sanctions, ethics and US-UK comparisons at Georgetown and will be glad to hear him again.

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Epiq Systems and Huron Consulting as Angels for US-UK e-disclosure play at LegalTech 2011

An “angel” in theatrical terms is someone who puts money into a play or film. Many productions would not happen without such support. I have already mentioned the judicial play which we are putting on at LegalTech and which consists of light-hearted scenes based largely on recent UK e-disclosure cases. Epiq Systems and Huron Consulting Group have kindly given the support which makes this possible.

The play – really a series of loosely-linked scenes – is an adapted version of something we did at IQPC in London last May and which, despite the levity, has the serious purpose of creating a better understanding on each side of the Atlantic of what happens in the other jurisdiction.

We have an all star cast. US Magistrate Judge Elizabeth LaPorte and US Magistrate Judge Andrew Peck play a composite judge called Fluffy. Fluffy may sound a soft touch, but those who know the first Harry Potter story will know that Fluffy is extremely fierce and guards a mystery which no one else understands.

There is, in fact, a subliminal point about Anglo-US terminology here: that book was called the Philosopher’s Stone when published in England but was re-named the Sorcerer’s Stone in the US version, apparently because the US publisher thought that children would be put off by the word “Philosopher”. US distributors have a habit of under-estimating their public (is it really true that the film of Alan Bennett’s play The Madness of George III had to be called The Madness of King George because of the fear that American audiences would think that they had missed the first two films in the franchise?). Much the same patronising logic underlay the 1999 UK rule change which abandoned the word “discovery” in favour of “disclosure”. The point is not that this jettisoned several hundred years of tradition, but that the word “discovery” embraced both the “uncovering” of your documents to opponents, and the prior, and very much bigger, exercise of finding out what you have. The proper term therefore became more, not less, appropriate as search became the dominant requirement. Those of us with feet on both sides of the Atlantic must refer continually to both terms.

Government says Bribery Act on course for April commencement

There has been talk of a late review of the Bribery Act, due to come into force in April. Much of this has been floated by those who consider that Britain’s competitiveness in international markets will be hampered if British companies are not allowed to bribe and be bribed with the best of them (I paraphrase, a little). The arguments are summarised, and demolished, by an article on thebriberyact with the uncompromising heading The Bribery Act and the review by No. 10: Will pigs fly? We don’t think so.

That prediction appears to be reinforced by an answer given in the House of Lords yesterday – I say “appears” because the Government’s answer does not in fact match the question (asked if commencement will be in April, the minister talks of “commencement of the Act in spring this year” and spring perhaps extends into May. I suspect that years of working for the Blair-Brown government has made the civil servants unaccustomed to giving straight answers to questions.

I was not aware of an outfit called Transparency International, but its head is today reported in TrustLaw as “hopeful that implementation of the Bribery Act 2010 is still on track” whilst warning that Transparency International “will take seriously any attempts to water down the legislation”. I doubt that this on its own will make the government quake in its boots, but it is hard to reconcile the unqualified certainty of the government spokesman quoted by thebribaryact with the faint odour of dragged feet which appears in the TrustLaw article. We shall see.

Meanwhile, some commentators appear to need reminding that bribery is a crime anyway.

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Exposing your thinking parts to the outsourcing discussion

That old image of the ostrich burying its head in the sand is apparently unfair. The purpose is apparently to use the ground as a sounding board, vibrations giving advance warning of problems to come. This prosaic reality undermines that quotation from the great libel silk George Carman,who said of one claimant that he “behaved like an ostrich and put his head in the sand, thereby exposing his thinking parts”.

I used to have reservations myself about mentioning outsourcing, but that was because every reference to it brought down on my head a stream of offers from people wanting to tell me at nauseating length about the services which they could offer without, apparently, making any attempt to establish whether I was likely to be a buyer. I stemmed the flow eventually by abandoning my usual courtesy and telling them exactly what I thought of their marketing.

It does not matter whether you prefer the traditional picture of the ostrich’s motives or take the revisionist view that it is just getting early warning of what is coming. Lawyers, whether in private practice or in companies, need to expose their thinking parts to different ways of covering the ground. Most information management involves a mixture of technology, grunt work and high intellectual input, and the trick is to work out how much of which you need to apply to what. You cannot begin this without some idea of what is on offer from both technology suppliers and from those who offer to do the parts which you cannot do cost-effectively yourself – or, to put it more accurately, which someone else can do at least as well at a lower cost.

I was recently invited to take part in the Global LPO (Legal Process Outsourcing) Conference, organised by KPO Consultants and taking place in London on 2 and 3 March.  It had a good spread of speakers already engaged, including general counsel from big employers and people from law firms, the Law Society and the Legal Services Board, together with David Kemp from technology provider Autonomy .

Recommind expands in UK and EU with hires and hosting

A couple of years ago, Charles Christian of the Orange Rag observed that whilst other providers made a lot of noise about what they were going to do in the UK market, Recommind quietly got on with making sales. The company has been less quiet about it lately, particularly in law firm enterprise search, as can be seen if you just run your eye down the list of press releases, with Mills & Reeve, Mischcon de Reya, Macfarlanes and Clifford Chance all named in the first page.

These in-house information systems, all rebranded during 2010 with the Decisiv label (Search, E-mail Management and Categorisation) have been joined over the same period by ediscovery / e-disclosure products with the name Axcelerate (one covering ECA and Collection and one for Review and Analysis). The same softly-softly approach to marketing has been evident with these products. My evidence as to Recommind’s penetration with these products is anecdotal, consisting largely of hearing the name mentioned by lawyers and others to whom I speak. It turns up enough for me to know that the products are getting serious attention.

I now know Recommind rather better than I did when Charles Christian made that comment, but it remains a mystery to me how so small a European team achieves this, particularly as there is business being done in Germany as well (see a video made by Project Counsel at IQPC in Munich, in which European Director Simon Price and European Sales Director Hartwig Laute are interviewed).

Two new developments signal the end of this low-key approach. One is the appointment of additional staff in London, including a Regional Sales Manager, a Regional Manager for E-discovery and sales engineering staff. The press release is headed Recommind doubles London presence and expands European operations by 30%, which says it all.

LDM Global webinar on 27 January – Sampling for Dummies: Applying measuring techniques in ediscovery

We all have a notion of what “sampling” means. My dictionary defines it as a “small separated part of something illustrating the qualities of the mass”. In electronic disclosure / e-discovery terms it can be useful at an early stage in determining what your document collection includes, to help make decisions as to what to include or where to start. At a later stage, it is used for checking what has been done, by pulling out examples of documents left in or out of a subset to check that the decisions stand scrutiny.

The new UK Practice Direction 31B includes “the use of Data Sampling” as one of the things which might be discussed with opponents before disclosure begins. The ability to take samples afterwards is part of the QA which lawyers like to do to reassure themselves, never mind anyone else, that they have done their job properly.

There is more to it than just sticking your hand into a bag and pulling out a few documents. Equally, it does not necessarily have to be a deeply mathematical exercise requiring the help of a statistician. Much modern software has tools designed to help manage a sampling exercise which will stand scrutiny.

LDM Global are producing a webinar on Thursday 27 January with the title Sampling for Dummies: Applying measuring techniques in ediscovery with Maura Grossman of Wachtell, Lipton, Rosen & Katz and Professor Gordon Cormack of the University of Waterloo’s David R. Cheriton School of Computer Science. I did a webinar with Maura just before Christmas – she gives good value, which translates across jurisdictions.

The details are as follows:

Date: Thursday 27th January
Time: 11am EST, 4pm GMT
Duration: Approximately one hour

You can find all the details and the registration link for the webinar on LDM Global’s website.

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The ups and downs of US ediscovery sanctions

The sanctions handed down by US courts for ediscovery failures bewilder the rest of us somewhat. To my eye, if one wanted to design a system which was absolutely certain to encourage satellite litigation, tactical play and (as a defensive reaction) excessive discovery as a back-covering exercise, you would come up with something like the present sanctions regime. I wrote about this in my article International discovery, sanctions, ethics and US-UK comparisons at Georgetown in the context of Judge Shira Scheindlin’s Pension Committee Opinion, saying:

Providers of software and services use the threat of sanctions to encourage that pen across the bottom of the order form; if none of them has yet produced an advertising picture with an axe breaking through the door to the cry of “Here’s Shira”, it can only be a matter of time. The English just gape at them; you mean you get fined massive sums of money because you didn’t send everyone in the company a legal hold letter? Because you overlooked a box of old tapes?
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Americans have rather more respect for senior office holders – judges, public servants and politicians — than we do, or respect at least for their offices, and it has been mildly amusing to an outsider to watch the legal establishment in its various forms implying, without actually saying so, that Judge Scheindlin might, you know, perhaps, have gone a little over the top in Pension Committee. An outsider can be less restrained and say that, whatever view you take of the decision, Pension Committee has elevated the fear of sanctions to the point where they have driven out proportionality.

They seem to like it. The problem which it gives us in the UK is that the inevitable obligations to disclose electronic documents become confused with the apparent message from the US that it is both dangerous and expensive to do so, which is why I spend a lot of my time drawing distinctions between the two systems. The UK is no more tolerant than the US of truly culpable omissions and failures but we have, so far at least, managed to avoid giving litigants the impression that every false move risks enormous financial penalties.

Twitter, bribery and 37 corporate counsel in a big virtual bar

All your highly-polished marketing materials are useless if you do not get them in front of your intended audience and engage with them about it. An article intended merely to point you to a source of messages about the Bribery Act became side tracked – in a good way – into a discussion about the media used to promote it. Dust off that Twitter account which your marketing people opened one Friday afternoon and have been too nervous to use.

You have a specialist subject which is of interest and importance to a wide range of people and which ought to be known to and understood by many more. It is a multi-faceted subject which can be approached from many different directions and is of interest internationally. People, both those already knowledgeable about the subject and those coming new to it, seem to appreciate what you write. You are competent in modern means of disseminating information and views, have plenty of energy and do not mind working seven days a week.

No, this is not about me but about Barry Vitou of Pinsent Masons London who, with Richard Kovalesky QC, uses thebriberyact.com, to bring news and views on the UK Bribery Act which comes into force shortly. Actually, is it not really about Barry, who in this context merely serves as a hook for some thoughts on using modern media forms to promote ideas and demonstrate expertise. His approach is the same as mine, but I have been looking for an example which will not be confused with my promotion of me – I don’t mind doing that, of course, but it muddies the example if it has that parallel motive.

I have referred to thebriberyact.com already (see Some resources on the UK Bribery Act 2010). The crossover between e-disclosure / e-discovery and the Bribery Act is obvious (the clue, if you need one, lies in the Bribery Act defence of “adequate procedures”), and Barry and I are jointly presenting a breakfast session with Iron Mountain on 8 March.

I come back to the subject now, partly because you might otherwise miss the stream of useful articles appearing on thebriberyact.com or linked from its Twitter account, and partly because I met Barry last week at the suggestion of Malcolm Durant of Iron Mountain. We met at Barry’s club, the flavour of which can be gathered from the minimalist rules which seem to come down to “be polite”; the dress code reads “nudity is discouraged” and it positively welcomes both laptops and dogs, all of which make it my kind of place (I once belonged – briefly – to a London club which was so impolite as to send my wife back upstairs – the backstairs, not the one reserved for gentlemen which she had descended – to put on her ball dress for breakfast because women in trousers were banned, as was any evidence of business; I am sure that dogs were no more welcome than women, though you would probably have been allowed in on a horse).

Lord Justice Jackson fights for his costs reforms

An article published yesterday in the Solicitors Journal is headed Jackson LJ demands his reforms are implemented in full. It draws attention to a letter from Lord Justice Jackson, the author of last year’s Litigation Costs Review, to Justice Secretary Ken Clarke calling on him to ensure that the costs reforms are put through in full.

The letter itself is published on the judicial website. You get the flavour of Sir Rupert Jackson’s approach from this paragraph:

….. the complexity of civil procedure is now a real problem and generates substantial costs. The new rules must be simple and clear. Any attempt to legislate for every situation is a chimaera, resulting in complexity and escalating costs.

Those who read my article of last week headed Judges defend our long-term liberties from short-term politicians will spot more than one connection here. One concerns the willingness of judges to take on politicians publicly where the interests of justice require it – there are in fact two points in one here, since the publication of Sir Rupert’s letter is a step distinct from the confrontation implicit in the letter itself; the other is the reference to “any attempt to legislate for every situation” which parallels one of Lord Judge’s complaints, reported on in my article and illustrated by his media-friendly reference to the possible variants of a particularly esoteric crime.

It is not clear, in fact, that Jackson and Clarke take different views – Clarke has been supportive, publicly at least. There are certainly powerful interests with good reason to fear the implementation of the proposed costs reforms, and civil servants are skilled in that delicate balancing act which always finds reasons for blocking change whilst creating enough work to keep them in employment.

It is good to see Lord Justice Jackson fighting his corner where a lesser man might have subsided gratefully back into his place in the Court of Appeal.

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Welcome to LDM Global as a sponsor of the e-Disclosure Information Project

I am really pleased to welcome LDM Global, a company which I have known almost since its foundation 15 years ago, as the latest sponsor of the e-Disclosure Information Project. In the days when my work involved handling rows and columns of data, some of the long days and nights involved exchanging data files with ever-helpful LDM people when we were working on the same projects.

I then thought of LDM as a London company, because that is where I worked with them. When I started travelling to the US, I kept bumping into Chris O’Reilly by elevator doorways (for some reason) in hotels and at conferences; when I was last in Sydney, I come across Greg O’Reilly in a coffee bar. None of this is really surprising of a company with the word “Global” in its name – Chris O’Reilly has always run the US operations, and Greg O’Reilly has returned to his native city to establish the Australian end to the business there. That followed a period of high-level recruitment, including the appointment of Scott Merrick as International Marketing Director and Steve Couling as Head of Global Sales.

That, it now appears, was merely consolidation for further expansion. It was interesting enough to see any company in this industry making big global appointments during a recession in which others retrenched or fell away, but the company also expanded in the US, with new offices in Washington DC and a production facility in Virginia. That much was, as it were, public, with announcements and press releases and all the usual fanfare which accompanies overt physical expansion. What really matters, of course, is what goes on behind the scenes, and LDM Global has recently hired new technology and professional staff to support increased business from the UK, Europe and Asia Pacific operations.

In the e-Discovery / e-Disclosure world, the ability to undertake work in different regions is more than mere efficiency – the nature of international discovery work, and in particular that which involves data covered by EU privacy and data protection laws, means that the ability to handle production on both sides of the Atlantic opens the door to work which one could not otherwise do. LDM’s work includes data recovery, computer forensics, large-scale electronic and paper-based discovery services and international projects for law firms, corporations and government institutions. The company operates from seven major locations – London, Brussels, Paris, Manchester, Sydney, Virginia and Washington DC, partnering with the world’s leading electronic discovery software vendors.

LDM Global executives from all the company locations will be at LegalTech in New York at the end of January, with a wine tasting event for clients on Tuesday evening as well as meetings with clients and prospects. Those from London who are unable to be at LegalTech may be interested in LDM’s post-show event in London which will report on the main points arising from the show.

A press announcement was made when I first set up business entirely on my own in October 2006. Early in the morning of the following day, the first message which came in was from Greg O’Reilly and read “Well done on venturing out on your own. If there is anything I can do to help just give me a call”. I was extremely touched by that, and by the occasional message which followed, apparently at random, to similar effect. Both our respective businesses have come a long way since then, and it is a particular pleasure to be working now with LDM Global.

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The Trilantic Commonwealth Brunch on Sunday at LegalTech

The invitations to parties, receptions and meetings at LegalTech New York continue to roll in – my personal best so far is four assignations on one evening. The biggest issue, so far as I am concerned, is not fitting them all in, but getting them recorded accurately in a calendar which does not recognise the concept of time zones. My recent move to Apple’s products reveals an unexpected limitation – Microsoft Outlook 2011 for Mac lacks the useful function in Outlook for Windows which allows you to set up parallel time zones.

Four options emerged during a recent discussion on Twitter: a) look up the local time on www.timeanddate.com and use that, hoping that you transfer it accurately and that everything falls into place when you adjust your devices’ time zones; b) enter events twice and include the local time as part of the description to give you a clue if neither makes sense when you get there; c) buy a watch and leave all your devices (I have four) at UK time, entering appointments as if the time difference did not exist; d) buy a stout diary and a pencil (the suggestion made by Charles Christian, editor of the Orange Rag and American Legal Technology Insider, and a long-time Mac user). There is a fifth option, I suppose – I could revert to the PC, but I invested far too much of Christmas in the changeover to contemplate that. The final option involves a trip to California and an act of violence upon the insular geek who failed to deal with time zones in his pretty but defective software.

One event which I will not forget, not least because it happens at the same time every year, is Trilantic’s Commonwealth Brunch at 10.30am on Sunday. This used to be a sedate affair called the British Brunch. Last year, for the first time, it became the Commonwealth Brunch, reflecting the widening scope of Trilantic’s work and the increasing connections between the non-US common law jurisdictions. Last year’s Brunch was attended by people from Australia, India and Canada amongst other places, as well as by one or two US people with tenuous claims to Commonwealth ancestry. I have the impression that we will see many more Australian and Canadian people this year – both places are seeing interesting developments in ediscovery.

Trilantic is, of course, now part of Huron Consulting Group, and we can expect a yet wider catchment area as a result. Nigel Murray is always a genial host, and this is a good way to launch the week.

Laura Kelly is co-ordinating the event. Contact her if you think you are qualified to attend.

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Welcome to ZyLAB as a sponsor of the e-Disclosure Information Project

You will have noticed the addition of another new logo to the collection of those who sponsor the e-Disclosure Information Project. ZyLAB joined up before Christmas, and I deferred writing my usual welcome piece because of a plan to go down and see them at their Bagshot offices. The snow put paid to that idea, and I did not get down there until last week.

My original connection with ZyLAB goes back to the dawn of modern search technology. The company brought out a text searching application for the then new PC in 1983, and I acquired a copy not long afterwards. Search in those days involved learning how to construct Boolean queries by hand – my first inkling that search technology and document discovery were made for each other. Not many of the players in today’s market go back that far.

ZyLAB was early in another respect as well – it has long had headquarters in Europe (in Amsterdam) as well as in the US. When US document demands for civil litigation, for regulation and for state-led investigations began to impinge on European corporations, ZyLAB was already there. They have always had UK clients, and they are now building on this to meet the growth expected to follow from the heightened UK focus on electronic disclosure in civil litigation, from the increase in financial regulation, and from the UK Bribery Act.

The product set includes systems for e-discovery and production, for compliance and litigation readiness, and for law enforcement and investigation. They cover the full EDRM (Electronic Documents Reference Model) from information management within a company all the way through to production of documents to opponents, with advanced search, text mining and analytics, data visualisation and machine translation built into their systems. The applications are available both for in-house use or as SaaS (Software as a Service). It is sold to both corporations and law firms, as well as to government and law enforcement agencies.

I spent most of a day with Ronald van Vuure, ZyLAB’s UK sales and marketing director, and his team. The aim of these visits is to exchange information – I give much the same talk as I give to lawyers about changing developments in the UK market, and I start to find out about the company’s products and services. It is a useful exercise on both sides.

There will be more about ZyLAB in these pages in due course. Meanwhile, it is good to be joined by such a long-standing player in the litigation search market.

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A reminder about some ediscovery sources plus a mini-conference on video

My plan to update the reference section on my website over Christmas was thwarted by the time it took to move from Windows to Office 2011 on the Mac – one of those jobs for which you allocate an hour or two and are still struggling with a week later. That, perhaps, is a story for another day, perhaps under the “awful warnings” section.

While that remains on the “Pending” list, the turn of the year is an opportunity to point to one or two resources which I use to keep me up to date. These are just the ones which come to mind today so please (please!) don’t write in to say I have missed yours.

Twitter has become the top source, mainly because it happens as it happens. There is a big network of thoughtful people out there, and it does not take long to build a list of those worth following – UK readers might perhaps start with the list of people followed by me @chrisdaleoxford, Jonathan Maas @MaasJonathan and Charles Christian @ChristianUncut and pick the ones who tweet abut things which interest you. That deliberately UK-based starting-point will take you a pre-filtered selection of US, Australian and other sources whose tweets have some bearing on UK thinking. You can always UnFollow if we or they do not live up to expectations.

Like some other forms of activity (so I am told), participation is not obligatory – you can get value from just watching. Having caught the flavour of the conversations, however, you might like to join in – we could do some more users (real-life users, I mean, not just experts who happen also to be lawyers in practice).

Webinar on 13 January – interview with the General Counsel of the SFO about the Bribery Act

A reminder that Vivian Robinson QC, General Counsel of the Serious Fraud Office, is taking part in a webinar on the implications of the UK Bribery Act 2010 on 13 January.

The other participants are Barry Vitou, partner in Winston & Strawn’s London office, Richard Kovalevsky QC of 2 Bedford Row and David Childers, CEO of EthicsPoint.

I have already put up a page of resources about the Bribery Act. If you want a single update source in the run-up to the Act’s implementation in April, thebriberyact.com is the place to go, with a good flow of useful tweets at  @thebriberyact.

Iron Mountain have invited me to take part in a breakfast session about the Bribery Act with Barry Vitou in February – details to follow. The main focus for corporations is the defence that the company had “adequate procedures” in place to prevent bribery. There is an obvious crossover here with the requirement in civil litigation that companies should at least know what sources of documents and data they have and should have a plan or process for digging it out urgently (and cost-effectively) when it is needed.

So far as I can see, the act has attracted much more legal interest abroad (in the US, in Asia and in the EU in particular) than amongst UK lawyers.  I raised it last week with the organisers of InnoXcell’s forthcoming Hong Kong ediscovery conference (21 to 23 June) as something they really must have in their programme. It is already included, they said, at the request of other proposed participants.

The big London firms, generally speaking, have been organising their in-house training for some time but I do not have much sense that anyone else has done so. This is not just a matter of being able to disguise your ignorance when the client rings you up about it. There is missionary-like work to be done making sure the clients know about the implications of the act  – it can take a while to plan and implement the requisite level of “adequate procedures”, starting with an assessment of what “adequate” means client by client. What is adequate for one will be pitifully lax for another and well over the top for a third.

Vivian Robinson is eloquent and better informed than anyone as to what the implications are for companies and their lawyers. Listening to this free webinar will give you a good start in understanding what it is about.

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Planting eDiscovery ideas inch by inch and step by step

Every article could cover one more topic, bring in another side-reference, or round out the discussion with another example, parallel or exception.  Sometimes it is best to stick to one core subject.

The continent of Europe is so wide,
 Mein Herr.
Not only up and down, but side to side,
 Mein Herr.
I couldn’t ever cross it if I tried, 
Mein Herr.
So I do..
.
What I can…
Inch by inch..
.
Step by step…
Mile by mile…
Man by man.

I am not sure that Cabaret’s Sally Bowles would make a great role model, but her meticulous approach to getting her arms round something, as described in the song Mein Herr, is spot-on. Take one subject, get everything you can out of it, and move on to the next. it is much easier if you stick to one at a time. With experience, you can perhaps take on more than…. well perhaps I have exhausted the analogy already. I only really wanted the “inch by inch, step by step” bit for my immediate purpose.

My December 23 post Judges and automated coding tools for electronic discovery drew an immediate comment from Joe Howie of Howie Consulting and the e-Discovery Institute. Joe is co-author, with Anne Kershaw of A. Kershaw, P.C. Attorneys & Consultants, of the recent Judges’ Guide to Cost-Effective E-Discovery which, in 25 brisk pages, gives judges an introduction to a subject which many of them find difficult – see its contents page for an idea of what is covered. Deciding what the strict obligations are in relation to electronic discovery generally is hard enough; it is those words “cost-effective” which make it particularly difficult. Any fool of a lawyer can give discovery of everything which might possibly be relevant, and any fool of a judge might let them have it. Similarly, it is easy enough to challenge the other side’s discovery, leaving the judge to decide whether the demands represent an unwarranted tactical pressure or a legitimate demand for evidence – or, indeed, ignorance on the part of both parties. Assessment as to what is easy, what is difficult and what is reasonably practicable at a reasonable cost is required of the judge, and this book aims to help judges in this respect. I was at its launch party in Georgetown in November and the critical reception (in that most critical of audiences) was uniformly positive.

Strong UK presence at LegalTech 2011

LegalTech 2011 is only a few days away and the programme is packed. Almost everyone whose name has appeared in these pages is taking part in something, and I will not attempt to list them all. Following on, however, from my recent piece about the Georgetown Advanced e-Discovery Institute (see International discovery, sanctions, ethics and US-UK comparisons at Georgetown) and the growing mutual interest in US e-Discovery and UK e-Disclosure, I thought it worth drawing your attention to the sessions involving UK participants. If I have missed any, please let me know.

Epiq Systems have two panels involving well-known UK participants. Greg Wildisen of Epiq moderates a panel called Navigating the Challenges of Cross-Border Regulatory Investigations with panelists including Professor Dominic Regan and David Cracknell of Slaughter and May’s London office. That is followed by a panel called Managing a Global Review while Minimising Risk moderated by Laura Kibbe of Epiq. The panelists include Senior Master Whitaker and Neil Mirchandani of Hogan Lovells in London. Non-UK participants known to readers of this blog include US Magistrate Judge Andrew Peck (who has teamed up with Master Whitaker in various jurisdictions, including Brussels and Hong Kong), and David Kessler who has recently moved to become Co-Head of E-Discovery at Fulbright & Jaworski – an entertaining and informative fellow, David, as I discovered to my relief when he was on a LegalTech panel which I moderated for Epiq last year (I say “relief” because it can be an interesting business, moderating panels of people you have never met before). Anyone interested in global and cross-border matters should attend these sessions.

Andrew Szczech of Kroll OnTrack UK takes part in a panel called Trends in Social Media and Cloud Computing. Jan Durant, IT Director of Lewis Silkin is on a panel called Business Processes Utilising SharePoint. Alex Dunstan-Lee of KPMG in London is doing a session called The Clearwell E-Discovery Platform: did you know? UK solicitor Mark Ross, VP legal solutions at Integreon, is covering Legal Process Outsourcing: Ethical, Practical and Legislative Considerations.

Apart from the UK, the non-US world is represented by Michelle Mahoney, Director of Applied Legal Technology at Mallesons Stephen Jaques in Australia, talking about the Intersection of Project Management and Practice Support. She was anointed Practice Management Champion at ILTA last year, so knows what she is talking about.

Judges defend our long-term liberties from short-term politicians

Can you get Henry VIII, necrophilia, the Human Rights Act, Phil Woolas, quangos, rubbish bins, the nuances of the English language, New Labour statism and health & safety into one serious article about the role of the judiciary vis-à-vis the executive? I’ll give it a try.

The relationship between parliament and the judiciary reached its nadir under the recently departed Labour government. The battlegrounds were the Human Rights Act, the so-called “Henry VIII” powers with which Labour sought to by-pass parliament, and the inverse relationship between the quantity and the quality of the mass of legislation which poured out of Westminster. Matters do not seem much improved under the coalition. The Lord Chief Justice, Lord Judge, has been making his views known.

The Human Rights Act

To some, the Human Rights Act is one of the signs that Britain is going to the dogs, whilst others see it as a fundamental assertion of the rights of ordinary people against the state. Most of us, politicians included, would like to pick and choose, depending on our own views of the individual outcomes of cases brought under it. The same applies to other circumstances where our liberties are at stake, where the authorities increasingly see our rights as a barrier to their powers rather than something which they were elected or appointed to protect, and we expect simultaneously to be guarded and left alone. To a judge, it is a more sober matter of applying the law to the facts.

The incoming Labour government in 1997 was quick to introduce the Human Rights Act, which passed into law in 1998. Almost immediately, however, it found that the Act stood in the way of things it wanted to do. Tony Blair, not a man to let little things like democracy and the rule of law stand in his way, was openly irritated by judicial intervention, as was his first Home Secretary, Jack Straw, (who introduced the Act). Straw’s successors, especially David Blunkett (a man whose undoubted political cunning seemed unqualified by common sense or self-awareness) seemed to see the judges as the enemy, whilst Jacqui Smith (for whom “home” and “secretary” somehow seemed just the right words) behaved as if the entire population was the enemy, and certainly made us feel it. Considerable political capital was expended in the government’s fight for 42 days’ detention of possible terrorists, which trampled on much more ancient rights. The government thought it almost treasonable that judges “used” the Human Rights Act to thwart the executive’s stance on possible terrorists – I put “used” in quotation marks to emphasise the gulf between judges applying the law as they found it and the government’s perception that it was judicial spite which turned their own creation against them.

The conflict continues to bubble along in matters both specific and general. A specific example is the recent decision by an Immigration Tribunal to allow an asylum seeker to remain in Britain despite an unlicensed driving career which included mowing down and killing a child. Prime Minister David Cameron was outraged at the tribunal’s conclusion that the driver’s subsequent marriage and fatherhood meant that his human right to family life trumped the ordinary man’s view as to what was right. Outrage, however, is no substitute for a cool appraisal of the law – see this post on the Human Rights Blog for an analysis and for comments both ways which show why Joe Public (that’s you and me – and, in this context, the government of the day) do not get to convert our instinctive judgments into action.

LPO predictions for 2011 from Fronterion and Integreon

When I look at the pile of articles which I dictated before Christmas, and at the mess which my voice recognition software has made of them, I wonder if the time has come to outsource the typing around here. Instead of talking into a machine and trying, days later, to work out what I meant from the random selection of words on the screen, I could have someone like that nice Peggy Olsen (Elizabeth Moss) from Mad Men sit beside me and take down my drafts, leaving me free to concentrate on what really matters. Perhaps Mad Men’s Joan Holloway (Christina Hendricks) would come and run the office, whilst Andy Sachs (Anne Hathaway) from The Devil Wears Prada would do all those other litle jobs which distract from my primary business functions.

That is not really outsourcing, of course – that would involve sending the dictation to South Africa or India, which would be less enjoyable but probably more efficient (or at least less distracting). The real answer, in fact, is to invest in better technology, and get voice recognition equipment whose output more closely resembles what I dictate.

The point of this rather glib introduction is to draw attention to the fact that every business needs to reappraise how it gets its work done. The nature of the work may change; new inventions can provide faster, cheaper or better ways of getting through the work and thus make time for things which add more value to the working day; new services are offered by people who specialise in a sub-set of your activities, and who can do it better for a lower cost. The only mistake is not to consider from time to time where the bottlenecks are in your production process – and most businesses are, at bottom, production lines, even for those of us who publish words for a living. I am unwilling to delegate as much as the placement of a comma to anyone else, so my focus is on better technology to accelerate the production process and on minimising the time spent on activities which, however essential, are peripheral to getting words published. It gives me more time to decide where that comma goes.

Although I usually try to add some value of my own when passing on links to articles by other people, there are two reasons why I simply point you to Fronterion’s LPO (Legal Process Outsourcing) predictions for 2011 and to Integreon’s comments on them. The first is that Integreon and Fronterion are not just big players in the LPO market but shrewd and informed – and objective – commentators on it; they need no additional comment from me. The other is that the last few weeks of 2010 were packed with useful and interesting things, and I do you a better service by pointing to as many of them as possible than I would by adding detailed commentary on a few. There is no point in publishing things just before a holiday, which is why I am only now picking up what I squirrelled away at the end of the year.

Big cases coming for big firms – but what about more ordinary litigation?

An article in the Lawyer of 3 January is headed Top firms gear up for action as litigation tsunami hits UK . Perhaps the most interesting point made in it concerns the cost of arbitration with the corollary that the court seems still to be the most attractive option, at least for bigger cases.

As its headline makes clear, the article largely concerns a list of very big cases due for hearing in 2011. What about more “ordinary” commercial litigation, the kind with hundreds of thousands or tens of thousands of pounds at stake rather than millions? The article’s premises – that companies have “exhausted more amenable avenues” for resolving disputes, that they must fight because they cannot afford to settle, and that they are “turning their backs on the arbitration process” almost certainly apply further down the scale. The government has promised a fresh drive to encourage mediation, but the target is primarily the smaller matters. Good legal advice appropriate to the dispute is expensive whatever the forum. No-one is knocking the idea that mediation is the right approach for many cases, but the focus should be on improving the court processes, not on driving litigants elsewhere.

Many companies seem to prefer to litigate – or would do if the costs were reduced or at least made more predictable. Lord Justice Jackson drew attention to the importance of certainty, not just as to the outcome but also as to the costs implications. The lawyers who will win business – by beating their rivals but also by encouraging companies to use the courts – are those who are best able to predict costs and keep within their estimates.

Richard Susskind’s law firm technology predictions for 2011

A short interview with Professor Richard Susskind on the Legal IT web site gives a packed 12 minutes or so which is well worth listening to at the beginning of the year. E-Disclosure is covered along with iPads, social media, the cloud and outsourcing as areas in which the gap between those who look forward and those who drag their heels will differentiate one firm from another in business practices, in the eyes of the clients, and in profitablility.

Before you dismiss what Richard says as fanciful, you may care to think back to his record as a predictor of legal business practice – how, for example, everyone laughed when he said that firms would communicate with each other and with clients by e-mail, or would publish legal information for free on their websites.

His four main predictions are:

1. There will be wider take-up of the iPad and other tablets, particularly when Word and PowerPoint become available on them. Lawyers are already using them for many daily activities both at home and at work, as are their clients, and mainstream acceptance cannot be stopped.

2. Many firms will move their data and processing to the cloud. Confidentiality concerns are being addressed and, in any event, it is probable that a first-rate outsource provider will offer better security than many firms can provide for themselves. This applies to litigation as much as to other things – much litigation data is either price-sensitive or very personal; how many firms can say in a post-WikiLeaks world that they are truly confident of their own security?

3. There will be an increase in outsourcing, with whole systems, not merely data, passed to third-party providers. This is not necessarily bad news for IT staff who may find more interesting challenges (and less aggravation) if they transfer their employment out of law firms.

4. There will be an uptake in the use of social media as firms make use of LinkedIn, FaceBook and Twitter for legal purposes, as many companies – the clients – are already doing, to tell the world what they are doing, planning or thinking. This is so predictable a development that firms must get policies in place in anticipation of it. Without them they will either get left behind by more adventurous firms or will embark on the use of social media without thinking through either the risks or social media’s place in their wider public-facing plans.