The Gartner Magic Quadrant for EDiscovery Software and other EDiscovery Market Matters

As I have often said, I am content to stick to my own part of the e-Disclosure / e-Discovery world and leave others to theirs. Deciphering market trends is the job of analysts; journalists can react quickly to news; the clammy dead hand of the industry press release, with its boilerplate verbiage and breathless hyperbole, can find its way round the world in minutes without any help from me; earnest lawyers can deal with properly foot-noted and referenced reports of cases. My role requires me to pull together such of the threads as will encourage lawyers to make the best use of the rules and of the technology to reconcile their clients’ objectives with the requirements of the courts, helping them to understand just enough of the technology to know what is available and broadly what it does.

May is always a busy time, thanks to IQPC’s information Retention and eDisclosure Management Summit in London and Guidance Software’s Computer Enterprise and Investigations Conference (CEIC) in the US, both of which always take place back to back on opposite sides of the world; one year found me rushing straight from Gatwick to IQPC, where I was caught sleeping through a session – fortunately, not one of my own.

This May has brought in addition the Gartner Magic Quadrant for E-Discovery Software, Autonomy’s acquisition of Iron Mountain’s digital assets and Symantec’s purchase of Clearwell, all on top of Epiq Systems’ acquisition of Encore Discovery Solutions in April. Tens of thousands of words have been written about these things, any one of which would be significant in any month, let alone all of them together. What do they mean for the lawyer, whether in-house or external, who has responsibility for managing electronic disclosure? Is there much to add to what has already been said?

Probably not, but it is worth gathering some of the threads together, using the Gartner Magic Quadrant as a background source. Gartner’s authority in this area needs no endorsement from me, and it is probably not necessary for me to say that I know both the authors, Debra Logan and John Bace. I am, of course connected with many of the names which appear in the Magic Quadrant as well as many who do not. Having pointed you to it, I do not feel the need to mention everyone who appears in it, sticking with those which illustrate some point beyond their bare appearance there.

Judicial Panel at CEIC has messages for other jurisdictions

Although primarily a forensics conference, CEIC, the Computer Enterprise and Investigations Conference, has an e-discovery track whose purpose is to raise awareness of the context in which data forensics are used beyond the law enforcement where they began. The cross-border panel  in which I took part was one aspect of this. Another regular feature is a judicial panel which was moderated, as usual, by Patrick Burke of Guidance Software.

The panel comprised former US Magistrate Judge Ronald Hedges, now a Special Master, US Magistrate Judge David Waxse and Hon. Donald E. Shelton, Chief Judge – Washtenaw County Trial Court, Ann Arbor, Michigan. Ron Hedges also introduced his pink friend, seen in the photograph below, but we never got to find out what his contribution was to the debate – the others had more than enough to say in the 90 minutes allocated.

These inevitably focus on practice under the Federal Rules of Civil Procedure. Some terminology apart, however, what was said applies equally in any jurisdiction

UK Government bids for a world-class legal reputation whilst neglecting the basics back home

The UK Ministry of Justice has launched a paper called Plan for Growth: Promoting the UK’s Legal Services Sector. The opening, at least, is admirably crisp for a civil service document:

It identifies the law as one of Britain’s strengths….

People turn to us because they know they will find world class, highly specialised practitioners and expert judges in the specialist courts. They understand that a decision from a court in the UK carries a global guarantee of impartiality, integrity and enforceability.

…. which is a major contributor to the economy….

These strengths help to explain why the Legal Services sector generated £23.1 billion or 1.8% of the UK’s gross domestic product in 2009 and constituted £3.2 billion in exports – nearly three times more than a decade earlier.

….but which faces competition:

…worldwide competition for legal services is set to intensify over the coming decade. New York, Stockholm, Paris, Geneva, Dubai, Singapore and Hong Kong all stand ready to compete with London and other UK jurisdictions as a hub of legal expertise. While the UK’s excellence and reputation is undoubted, costs and speed may affect where companies choose to resolve their disputes. We intend to do all we can to protect our competitiveness and build on our success.

Steps are to be taken as part of the Government’s Plan for Growth…

the Ministry of Justice is committed to working closely with UK Trade & Investment and the sector to promote the UK as the global centre of legal arbitration and commercial law services.

As part of this we have a fine new Commercial Court building:

Dedicated, high-spec business court under one roof – the Rolls Building brings together the Chancery Division, Technology and Construction Court and Commercial Court under one roof, offering a streamlined service to businesses and maintaining the UK’s reputation as first choice for business law.

EU-US EDiscovery – Data Transfer Role-Play at CEIC

One of my reasons for going to CEIC 2011 in Orlando was to take part in a panel about international EDiscovery. The panel was called International EDiscovery: Data Protection, Privacy and Cross-Border Issues and was led by Patrick Burke, Assistant General Counsel at Guidance Software. The rest of the panel consisted of Conor Crowley of the Crowley Law Office, Dominic Jaar of KPMG.

One is well used to the idea that different jurisdictions have different discovery rules, and we may sometimes find other peoples’ rules incomprehensible. Someone at CEIC described the UK disclosure obligation to me as “I’ll give you what I feel like giving you”. That is not a description we recognise, but we can see that our rules (which require a lawyer to disclose all documents which are supportive or adverse to the case of his own client and of any other party) appear as treason to those from a jurisdiction where the scope of a Request is a fiercely fought over. For our part we think of the US approach as “Gimme everything you’ve got which might have any bearing on anything which might conceivably be relevant to the issues or I will have you sanctioned”. US lawyers see that as fighting hard for their clients; we see it as a grotesque waste of time and money. Chacun à son goût – we can each play as we like in our own playgrounds.

AccessData EDiscovery Conference in Frankfurt on 7 June

I am very much looking forward to speaking at and moderating an EDiscovery conference run by AccessData at the impressive Schlosshotel Kronberg near Frankfurt on 7 June. The programme is here.

The speakers come from Siemens AG, from a US and UK law firm, from providers of professional services connected with EDiscovery and from AccessData itself – CEO Tim Leehealey is coming. My opening will include a round-up of developments in other jurisdictions and the changing roles of company lawyers, outside lawyers and technology providers. One of the law firm speakers is Vince Neicho from Allen & Overy who will describe developments in UK e-Disclosure.

US lawyers become involved with electronic discovery in Germany largely because of the privacy and data protection implications which arise when they are managing US litigation and regulatory investigations. I was part of a panel in the US recently which dealt with these questions through role-play, and my part was as in-house counsel for a German subsidiary of a US company. It was no accident that we choose Germany – it is a major trading partner with the US and has increasingly strict privacy laws. The increasing interventions by various arms of the EU Commission bring their own demands for discovery; the UK Bribery Act affects any company with a UK presence; purely domestic disputes may not bring formal discovery requirements on the scale demanded in the US or UK, but German companies and their lawyers cannot avoid the fact that the evidence lies in electronic form.

This is a packed program, starting with a welcome and introduction from me at 13.00 and ending with dinner at 20.00. To book a place, send an e-mail to Charity Wagner cwagner@accessdata.com as soon as possible.

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Two more Bribery Act sessions with LDM Global

LDM Global has two more Bribery Act events coming up this week, following the one which I moderated for them recently.

The first is on Wednesday 25th of May at 4.00pm BST and is a webinar given by LDM Global General Counsel, Don MacFarlane and by Robert Bond, a partner at Speechly Bircham.

The second is given by the Institute of Directors City Branch on Thursday, 26 May at 6:30pm at the offices of White & Case. Speakers include Vivian Robinson QC, outgoing General Counsel for the Serious Fraud Office, John Burbidge-King, CEO of business reputation and risk management experts Interchange, and Don MacFarlane again.

You can find details about both of these events on LBM Global’s Upcoming Events page.

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EDisclosure Re-Discovered in Birmingham with First Advantage on 25 May

I will be in at the Hotel Du Vin in Birmingham on the afternoon of Wednesday 25 May talking about EDisclosure with Drew Macaulay of First Advantage Litigation Consulting. Our chosen title is EDisclosure Re-Discovered. The agenda for the event is here and there is a summary here. Send an email to info@fadv.com to let Drew know you are coming.

We are running the session twice and there is still room if you care to join us. We aim to keep it informal, with plenty of time for questions and discussion – and there will be no software demonstration.

Birmingham is home to the Costs Management Pilot initiated by Lord Justice Jackson and to various initiatives by HHJ Simon Brown QC to focus on proportionate costs and client objectives as well as on the downsides for those who do not know the rules. Amongst other things, we will talk about the eDisclosure Practice Direction 31B and the Electronic Documents Questionnaire.

We look forward to seeing as many of Birmingham’s litigation lawyers as possible on Wednesday.

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Craig Ball Entertains at CEIC 2011 on Computer Forensics for Lawyers

I choose my words carefully when I write, and nowhere more than in the headings to articles. It took me 10 seconds to decide that the word “entertains” would form part of the heading to this post. “Entertains”, “Forensics” and “Lawyers” might appear to be mutually exclusive terms. Add the fact that Craig Ball’s session lasted for two and a half hours across lunchtime on a sunny Sunday in Orlando, the entertainments capital of the world, and you would think it remarkable that anyone could hold a large audience. Craig pulled it off.

The venue was CEIC 2011 or the Computer Enterprise and Investigations Conference to give its full name. The title of Craig’s session was Nerdy Things Lawyers Need to Know About Computer Forensics and a Few Nerdy Things Forensics People Need to Know About the Law. I have pages of notes, but I do not intend to summarise the whole thing. A few points will give you the flavour of it.

Many important things are very dull, and the standard recitals of information volumes – how many Gb per typical user and what that converts to in paper for example – is one of them. Here is one to grab your attention: take every word you ever read, every piece of evidence you have seen, and every phone book, cereal box, and road sign; add the text of every conversation in which you have taken part, the lyrics of every song you have ever heard and the script of every movie or television series you have seen. All that would fit on the smallest hard drive you could buy, with room to spare. Other media forms add volume – we are constantly photographed, and financial transactions are tracked; GPS allows our movements to be traced, and all this is in addition to information which we choose to publish about ourselves on FaceBook or whatever.

The Bribery Act – time to review Information Management

In the short gap between IQPC in London and CEIC in Orlando, I was invited to join a panel at Pinsent Masons on the Bribery Act, one of a series organised by Barry Vitou of Pinsents and thebriberyact.com.

You will see from Barry’s report of the session that the panel comprised himself, barrister Richard Kovalesky QC, Howard Sklar from information software company Recommind, and me. The differing viewpoints of Barry and Howard appear from their respective web sites, Howard’s at the Open Air blog and Barry’s at thebriberyact.com, and are touched on in Barry’s report. I want to expand a little on what I said about the information management aspects.

Information Management

This is one of those high-level terms which could mean anything. The suggestion is not that companies should set about a ground-up comprehensive records management programme because of the Bribery Act (I am not saying they should not do that anyway, but that big undertaking will be too much, and too late, for the immediate risk). Managing information is a component of managing risk; risk varies from company to company and (as Barry reminded us) between jurisdictions and sectors. The “information” to which I referred was the data which relates to identified areas of risk; “management” means knowing what you have got, knowing how to find what you need, and being able to distinguish between what is important and what is not. And “important” is a dynamic concept – you don’t know today what will be important tomorrow.

Getting on with the basics at CEIC as the eDiscovery world spins a little faster

I could sit here all morning trying to come up with a succinct heading which captures everything which is going on in eDiscovery / eDisclosure at the moment. The big things happening at a corporate level have greater long-term significance than mere changes of ownership, but the conferences, the articles, the cases and the rest don’t stop because of them. I have been at back-to-back events – IQPC in London and CEIC in Orlando, with a panel about the Bribery Act at Pinsent Masons with thebriberyact.com in between; there is more coming up. My heading, workmanlike rather than inspired, reminds us that this everyday stuff goes on daily whilst a bigger game plays out in corporate board-rooms.

I wrote up IQPC before I left for Orlando and will write about the Pinsents event and CEIC shortly. I rarely post things (or even tweet) when I am away, and this short piece is just to confirm that I am still (or again) at my post. The sentry duty analogy is deliberate: just before I left, Autonomy bought Iron Mountain’s digital assets; Gartner’s Magic Quadrant for eDiscovery Software came out whilst I was in Orlando; I had just parted company with Eddie Sheehy of Nuix when the announcement came through of a major investment in Nuix; I dropped off for a few minutes yesterday evening (I don’t need much sleep, but whole nights spent flying have to be made up somewhere), and woke to discover that Symantec has agreed to buy Clearwell Systems (the links are to their respective announcements); the wires are full of Recommind’s announcement of a partnership with email archiver Smarsh. The international ediscovery world is spinning faster than it did last week.

These are all interesting and important and I will come back to some of them in due course. Much of it is analysts’ territory, and I am concerned more with the nuts and bolts of e-discovery / e-disclosure – what judges are thinking, what lawyers should be knowing and doing, and what practical problems face them. I will let the news stories simmer whilst I catch up with what I have been hearing and speaking about at the hands-on level. They are different strands of the same story anyway – the continuum from email archiving through to ediscovery for litigation and compliance purposes appears in both the company stories and the day-to-day practical stuff.

UK and US EDisclosure / EDiscovery and Compliance Commonality at IQPC London

There was something for everyone at the IQPC Document Retention and EDisclosure Management Summit in London this week. The Bribery Act gave added incentive for those responsible for information management within organisations; at the other end of the process, prosecutors and judges from the US and the UK emphasised that the target is not merely formal compliance with court rules but business objectives and business efficacy; in between, the technology begins to appear – at last – as a tool to support the business and procedural requirements and not, as it used to, as a free-standing objective of its own.

We have also finally eradicated the impression that US judges, providers and practitioners are missionaries come to civilise a backward race. We are all in this together, thanks to four specific facets of globalisation: the need to collect data worldwide and the privacy conflicts which that brings; the fact that the dominating new technology for creation and dissemination of data (of which Twitter and Facebook are but two examples) goes global immediately; the convergence of thinking on court-led procedural matters such as co-operation and proportionality; and now the Bribery Act, matching and exceeding the reach and the implications of the US Foreign Corrupt Practices Act. One US visitor said that she had gone away from a previous conference wondering why she had crossed the Atlantic simply to hear other Americans speak; there are still plenty of them here, but their contribution now brings a world view, not merely a US one, to what has become a much more collegiate group of experts.

As always, I went to relatively few sessions beyond the six in which I took part because I use these events as an opportunity to talk to as many people as possible. I mention this not merely to justify my failure to report comprehensively on the whole conference but to emphasise a hidden value in these events, and an overlooked justification for time taken out of the office. Unclear about some particular technology and whether it its use is likely to be acceptable in a court? Talk to a few people who provide it and then to a judge. Not sure whether your company is ahead or behind others in compliance matters? Have a chat with people who hold parallel roles in other companies. There is much more to these events than one-way communication from the platforms.

All set for the IQPC London Document Retention and e-Disclosure Summit

I do not see much point in describing in detail which sessions look interesting over the three days of IQPC’s Information Retention and e-Disclosure Management Summit, which starts at the Brewery in Chiswell Street on Monday. It is a packed programme, offering serious choices between competing sessions. Even if you are not going, I recommend running your eye down the listings for the three days. They serve as a list of topics which ought to be on the agenda of anyone with a legal or information management function in a company and of those who advise them.

The first day, Monday, consists of six workshops of three hours each. Between them they cover building e-disclosure teams, cross-border disputes, early case assessment, proportionality, compliance, and the deceptively simple question “Where is the data?”. The speakers come from major players in the UK, EU and US litigation and investigations and the three-hour time slots offer interaction with the audience which is not always possible in the standard sessions. I did one last year; the time flew by and the panelists, as well as the audience, gained much from taking part.

The Tuesday sessions put a strong emphasis on regulatory requests and investigations and on information management, with a single track in the morning and three tracks in parallel in the afternoon. There are, again, some strong speakers here with hands-on experience at the highest level and some serious conflicts when it comes to choosing which of the afternoon sessions to attend.

My own decision-making, at least, is rather easier on Wednesday since I am involved in some of the panels myself. We open with the by now traditional US-UK judicial panel with Judge Peck, Judge Grimm and Judge Facciola from the US, and with Senior Master Whitaker and His Honour Judge Simon Brown QC flying the UK flag. Patrick Burke of Guidance Software moderates as usual.The key words in the session title are “providing effective leadership” and that is what we get from these five judges in their respective jurisdictions. It is perhaps not appreciated how significant this annual panel has been in generating valuable and practical understanding which informs judicial thinking on both sides of the Atlantic. I attend the equivalent panels in the US, and the trade in e-discovery / edisclosure ideas is now two-way. The UK is the second-largest legal market in the world, and no-one took any notice of us on this subject four years ago.

Metropolitan Corporate Counsel interviews Equivio on Processing and Proskauer on Compliance

The only direct connection between the two articles referred to in my title are that they both appeared on the Metropolitan Corporate Counsel website yesterday. An interview with Warwick Sharp of Equivio is headed The processing mountain was blocking the view – new mountains to climb in e-Discovery. An interview with Anthony Pacheco of Proskauer is called The FCPA and UK Bribery Act: Compliance Programs essential.

There is another connection – they are both superlative articles of their kind, and on subjects which are topical and important. I have done an interview with Metropolitan Corporate Counsel for such an article. It took more than two hours, mainly because the interviewer was genuinely interested in the subject matter, not just knocking out copy to fill some space.

I see no point in summarising either of the articles, hoping that you will accept my recommendation that you read them. Warwick Sharp once told me something he was told at university: you know that you have described something adequately if you have explained it to your mother and heard her explain it to somebody else. One’s mother, in this context, stands for anyone who is unfamiliar with the subject-matter. If that is your position in relation to predictive coding, then Warwick’s interview will fill the gap for you. I particularly like his conclusion that law firms are the potential winners not, as they might think, the losers, from the adoption of technology of this kind.

I found both of these articles through Twitter – it would be more correct, in fact, to say that they found me, because they turned up in my screen on being tweeted or retweeted by someone whose recommendations I rely on. I retweeted them in turn, but that is because I choose to be an active rather than a merely passive user of Twitter. There are many reasons why you may have decided that Twitter is not for you. It is worth stressing that you can get enormous benefits from it as a purely passive user, selecting a few people to follow and reading linked articles which appear to be relevant to you. You may get drawn into the discussions and you may go on to use Twitter as a communication tool of your own, but many people use it simply to get timely and targeted information about things which interest them.

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LexisNexis e-disclosure webinar pulls in the crowds

2090 people registered to watch a video webinar on e-disclosure and privilege last week. That is, apparently, the highest number for any of the successful LexisNexis series of such webinars and presumably reflects the growing interest in electronic disclosure.

The moderator was Professor Dominic Regan. Barrister Shantanu Majumdar of Radcliffe Chambers spoke on privilege and my subject was the e-disclosure Practice Direction and Electronic Documents Questionnaire which took effect on 1 October 2010.

I have always been happy to leave the subject of privilege to the lawyers – my interest is in the use of technology which delivers electronic documents to the experts for review and which makes it easy for them to identify and flag privileged documents in the same way that they indicate relevance or the allocation to an issue. Between you and me, I generally use the privilege sessions at conferences to nip out for a smoke and a chat with whoever is passing.

You cannot do that when you are wired into a studio in front of four video cameras, and I am glad I listened as Shantanu took us through legal advice privilege and litigation privilege. My recollection of my training is that we are given some broad instruction of the “you will know a privileged document when you see one” kind. Even in those innocent days long before Three Rivers District Council v The Bank of England and the cases which followed it, the subject deserved more precision.

The uniting and dividing power of a British Royal Wedding as shown on Twitter

I got my first hint of US interest in the Royal Wedding soon after it was announced. I was the only British representative at a Washington conference, and stood up to make some worthy point at a judicial panel. One of the judges called out “Hey, it’s Chris Dale. He’ll get us all tickets for the royal wedding”. I am not sure that anyone in the UK had really started thinking about tickets at that point.

If we came late to our own party, as it were, we made up for it on Friday, with 500,000 people crowded in the Mall and millions (some said billions) watching on television or keeping in touch via the Internet. Tweets raced by faster than one could read them, but it was possible to catch the general tenor and to see the polarisation into about a dozen different viewpoints.

The women focused on the dress and The Kiss. For men, the front view of the Lancaster as it came down the Mall and the rear view of the Maid of Honour as she went up the Abbey steps were the dominant subjects of interest. The women were more forthright in intimating their personal wishes with regard to Prince Harry than the men were with respect to Pippa Middleton, though both were united in predicting a second Windsor-Middleton union before the night was out (I hasten to add that I am a merely a rapporteur in this context, neither approving nor disapproving of what I noted in the Twitter stream).

The overwhelming majority of the tweets expressed good wishes, approval and other generally positive sentiments, including a fair number who emphasised that they had not intended to be drawn in but were now hooked. What interested me more, in a way, was the minority who expressed contrary views. There was the usual lefty tosh about money being “wasted” on the rich and privileged which could be spent on [insert your own deserving cause/bottomless pit/socialist dream here]. The most fanciful figure which I saw was given as the cost of the wedding was £50 billion which confirms that ignorance is no bar to the right to comment on Twitter (and nothing I say below implies anything different – disagreement with people gives no right to refuse them their say, though I doubt they would reciprocate such freedom of expression if their drab, grey time were to come).