Back from Carmel and North California

July 29, 2011

I got back from San Francisco this afternoon after nearly two weeks away. Mary Ann (Mrs D) and I went first to the excellent Carmel Valley eDiscovery Retreat a new venture organised by Chris La Cour.

The star turn there was US Magistrate Judge Andrew Peck, both as a keynote speaker on the subject of predictive coding and as an informed and informative panellist, to say nothing of his useful interventions from the floor. Also on the panel was US Magistrate Judge Elizabeth Laporte, increasingly a voice to be heard on the balance which is called proportionality. Back in San Francisco, she showed us her court, an interesting supplement to my knowledge of the US judicial system.

There were other excellent sessions and plenty of interesting people to talk to. My reports will come out over the next few days, together with some comments received on an earlier post and my reaction to them. It seems likely that Chris La Cour will repeat the show next year. If he does, I recommend that you go, for the atmosphere as much as for the learning. Read the rest of this entry »

Laura Zubulake in her own words at Carmel

July 25, 2011

Whilst it was interesting to hear Laura Zubulake’s behind-the-scenes account of the case which made her name, stories of old battles do not necessarily equip us for the war which follows.

As I recounted in my last post, I have been at the Carmel Valley eDiscovery Retreat, miles from anywhere in a remote spot in northern California. Apart from the rural location and the more reflective pace which that brings, little distinguishes this event from the many other conferences which I attend. There is a finite range of subjects, and many of the speakers, the vendors and the delegates are people one sees at other places. One does not necessarily want innovation (please no – no ground-breaking cases, no “revolutionary” new software) but the talks by and discussions with different permutations of people are valuable, especially when you don’t have to rush to your next demo, session or meeting as you do at some conferences.

There is a growing feeling, in the US and the UK alike, that it is time that we moved on from the basic elements of eDiscovery / eDisclosure. It is not that the work is done to complete some notional Phase 1. Horror stories abound, of lawyers taking no steps to preserve data, of work which is unnecessary or duplicated, of aggressive tactical play calculated to achieve nothing but extended timelines and wasted costs. We seem, however, to be going at the speed of the slowest members of the ediscovery wagon train, and it is perhaps time to leave them to be picked off by hostile courts and unfriendly clients. The US sets itself higher targets than the rest of us in terms of the procedural hurdles, as well as the volumes, and the falls are correspondingly greater. The resulting debate and discussion is inevitably higher in the US and the role of an outsider is to pick out those things which are of universal application. As in the UK, it so often comes back to the fundamental objectives behind the rules – the “just, speedy and inexpensive” mantra of the FRCP’s Rule 1 and the “overriding objective” in England & Wales. Read the rest of this entry »

Getting to the Carmel Valley eDiscovery Retreat

July 19, 2011

Carmel eDiscovery RetreatI am at the Carmel Valley eDiscovery Retreat, a little south of San Francisco. My wife, Mary Ann, is with me, which is what happens when you make your wife a director of the business and put her in charge of travel arrangements. In business terms, I am delegating non-core functions, leaving me free to do the writing and speaking, and all the background stuff which lies behind them. You don’t realise how much time is spent on airline websites and on hotel bookings until you pass the job to someone else. That said, I have just been called from writing this in order to explain how the light switches and bath plug work, which doesn’t happen when you travel alone after years of experience of the obscurity of hotel fixtures and fittings.

The Carmel Valley eDiscovery Retreat is a new event in the calendar. Chris La Cour, who runs it, invited me to come nearly a year ago and I was not then willing to commit to it before waiting to see what else competed for the time and, to be frank, whether Chris got it to fly. My fellow director was hooked from the start by the photographs of Carmel and the region, and made sure that I kept the week free; meanwhile, the list of speakers and sponsors became more interesting by the month – there is a big overlap between those who sponsor the eDisclosure Information Project and those involved in this event. Read the rest of this entry »

CY4OR web site brings forensics to lay lawyers

July 15, 2011

A nice reference has turned up on CY4OR’s website to supplement the words like “professionalism”, “expertise” and “excellent” which recur amongst their testimonials. The one I like reads as follows:

Professional and prompt service and able to “dumb down” the technicalities so that they are understandable to computer illiterates like myself

Another reference includes the words “a personal element”, which ties in with my strongly-held view that personal connections are a key differentiator in a market where it is hard for any of them to find new words to describe what they do.

This is not in fact what took me to the CY4OR website. I went there to capture a couple of blog posts which Bethan Williams put up at the beginning of June and which, like all blog posts, have disappeared from the top of the list. They are summaries, in terms intended to be understood by laymen, of the main purposes and benefits of engaging a forensic investigations company like CY4OR.

One is headed Computer Aided Fraud Detection and Investigation Tools and the other is called Recent Developments in Computer Forensics Analysis. Being “computer illiterate”, as the referee describes him or herself, is not itself the problem. The problem lies in not spotting the possibility of finding (or losing) evidence at the right time in a case, and knowing where to turn for help with that. These articles recur in the current edition of CY4OR’s newsletter – this is called Digital Exposure, and you can sign up for it on the CY4OR site.

I am writing a paper for CY4OR which focuses on what lawyers need to know in a broad range of circumstances, including some which are not necessarily obvious. Amongst the testimonials, for example, are a couple which refer to the use of forensic evidence to disprove something or to acquit someone wrongly accused of some computer misuse. It is worth emphasising that computers can hold many clues which may overturn apparently strong but circumstantial evidence, as well as for finding or proving a case.

CY4OR are certified Clearwell partners and the latest entry on the CY4OR blog, headed A More Comprehensive eDisclosure Solution, covers the acquisition of Clearwell by Symantec which has just closed – I wrote about that here. CY4OR will be very pleased to show you what it is which prompted Symantec to buy Clearwell for $410 million.

A pedant writes: “What is a lay lawyer?” Mike Taylor challenges my use of the word “lay” in my heading. He is not wrong to tease on the subject, but I ain’t changing the thing which connects this post to Google’s indexes. “Lay” in this context means “not expert”; lawyers may be expert in the law but, like the giver of the testimonial referred to, not expert by their own admission in some discipline needed to pursue an aspect of engaging in their profession. That is what the article is largely about, and that is why the word “lay” appears in its title.


Welcome to kCura as a sponsor of the eDisclosure Information Project

July 13, 2011

It is a great pleasure to welcome kCura as the latest sponsor of the eDisclosure Information Project.  The connection goes back a bit, and the arrival of their logo on my sites is part of a continuing if intermittent strand of connection-points.

Scene 1

It is years ago – 2004, I guess, in my prior life before the eDisclosure Information Project. Mark Dingle, then at Simmons & Simmons, points me to a small software company which, he predicts, will do very well with its document review platform Relativity. Mark’s recommendations are usually worth following up and I drop kCura a line, getting a reply at once. I knew nothing of US eDiscovery in those days, and no one in the US had heard of me, so the quick response gives a good impression. Other things intervene and I am not in a position to pursue the connection.

Scene 2

Four years have passed and it is the summer of 2008. kCura and Relativity are becoming well known on the strength of some high-profile sales and an unmatched reputation for the quality of the support given to customers. Its CEO, Andrew Sieja, visits me in Oxford. Andrew proves to be about 20 years younger than most CEOs and bursting with enthusiasm for the market and for his software’s place in it. Having never met before, we describe our respective ambitions to each other as we walk up the river. His aim is to make kCura a world-class player within two years; mine is to be seen as authoritative in every jurisdiction requiring discovery over the same period. Our respective ambitions probably seem rather fanciful to each other as we wander along English country paths with the dog. I use our conversation as the springboard for an article Meeting People is Right, my fullest articulation to date of the fairly simple proposition that lawyers need to know who the providers are and what they offer. I wanted, I said, “to make suppliers allies in the collective fight to help lawyers see what is possible”. Apart from references to named people who have moved jobs since then, I would write the same article today. Read the rest of this entry »

Clearwell is now officially part of Symantec

July 12, 2011

Clearwell is now officially part of Symantec is the self-explanatory title of today’s post on the Clearwell eDiscovery blog and of the more formal acquisition report on Symantec’s site as the acquisition and regulatory formalities come to an end. Clearwell’s former CEO, Aaref Hilaly, is now VP and General Manager, Clearwell, after an end-of-term period of mixed sentiment and excitement which I found rather endearing coming from a hard-nosed and extremely commercial company.

The message from the closing blog post is of integration of the eDiscovery and archiving workflow solutions from the two companies. For the moment anyway, Clearwell’s distinctive branding remains on the website, and Aaref Hilaly promises that the information-flow will continue as the integration moves forward. In the interval between my dictating this post this morning and editing it now, the “blog” link on the Clearwell site has been redirected to Symantec’s blog, which shows that changes are rolling out hour by hour.

Aaref Hilaly’s previous post from the end of last month is headed Clearwell lives on, but it’s farewell to “Clearwell Systems Inc”. The post runs through the Clearwell story from the vision of the founding team less than seven years ago through to its sale for $410 million. Aaref Hilaly gives credit to luck along with an obvious pride in the strategic and investment decisions and hard work which brought that reward to the company’s shareholders.

Instead of the conventional one-liner thanking all those who contributed to the company’s success, Aaref actually lists them, from those who organised the first round of funding through to those who handled the Symantec M&A via the development, sales, marketing and other teams. I am extremely touched to be included in a list of those who are credited as “doing so much to help define eDiscovery software as a space and make it intelligible to end-customers”. I started the eDisclosure Information Project in early 2007 and I am not sure that I had heard of Clearwell then. Anyone now making the most cursory review of the market as a potential buyer will come across Clearwell’s name, even without its recent position in the top right-hand corner of Gartner’s eDiscovery Magic Quadrant.

I could be forgiven for having mixed views on these acquisitions – every reduction in the pool of players in the eDiscovery market diminishes the number of potential sponsors for what I do. Fortunately, Symantec is also one of my sponsors, and I very much look forward to being involved with the joint future of these two companies.


A lull in the Predictive Coding battle

July 12, 2011

The role of a journalist in war, it is said, is to come down from the hills after the battle and bayonet the wounded. I will content myself with a tour of the battlefield.

If this means nothing to you, you may care to refer to my long article Predictive Coding Wars: Recommind Contra Mundum in which I cautiously navigated a war of words which broke out when information software company Recommind issued a press release headed Recommind Patents Predictive Coding. I reported the reactions of others whose technology is of the same kind (I’m treading carefully here with my choice of words) and of market commentators, ending the story with an article of 16 June by Recommind’s CEO, Bob Tennant, headed Of Predictive Coding and Patents.

Recommind’s chief critics were Herb Roitblat of OrcaTec  and Equivio. Herb Roitblat was quick to say that Bob Tennant’s article satisfied him. The story comes up now because Warwick Sharp, VP Marketing and Business Development of Equivio, has written an article headed Predictive Coding, Patent Wars and May the Best Product Win – the latter words being an echo of Equivio’s main message in their formal comment about the subject. In the interim, Metropolitan Corporate Counsel has interviewed Bob Tennant under the heading Revolutionizing eDiscovery With Predictive Coding.

It is probably not a coincidence that Warwick Sharp has taken his headings from Shakespeare’s darkest plays, Macbeth, Hamlet and King Lear. Shakespeare, of course, has something to say on every subject, including this one – is this Much Ado About Nothing? Do we say, like Mercutio as he bled to death, “a plague o’ both your houses”? Give me a couple of hours, and I could write a whole relevant paragraph made from quotations from Shakespeare’s plays – you might say, for example, that the whole subject is “Greek to me” as Casca said to Cassius, and that you don’t understand a word of it.

We all have things we do not understand – I would lump string theory, Serbo-Croat and line dancing together as areas of skill or knowledge which I am happy to do without. I do not understand, any more, how a motor car engine works – the “any more” signifying both that they have become more complex and that their reliability removes the need to understand what happens when I turn the key. Do you need to know how predictive coding works, what can be patented and what cannot, and how it differs from potato peeling (to take Warwick Sharp’s analogy)? No, you don’t, any more than I need to know what happens when I turn the car key, but you ought to know what advances have been made in computer-assisted document review.

I take a look at some of these applications about once a year – I saw Recommind’s Axcelerate Review & Analysis solution demo on Friday, as it happens, and it is about time I caught up with changes to Equivio’s Relevance since I last saw it. I do not have to go anywhere to see these demos – they are brought to my desk over the web, and are “live” in both senses – a human is presenting them and they involve real-time searches of live data. I can interrupt and ask the demonstrator to go back to explain something again, and they are a painless and informative way of catching up with developments or, if it is all new to you, of understanding these tools and what they can do for you.

As I say, Warwick Sharp’s latest article repeats what was the theme of Equivio’s first riposte to Recommind’s claim – “May the best product win”. What is “the best” is not capable of absolute measurement or, rather, I am not qualified to give a view as to which is the best even if it were politic to try. There are several choices here (Recommind and Equivio are not the only players) and the important thing to understand is that the competition between them drives the technology upwards and the prices down. Any conclusion reached a year ago about what is right for you and for your cases and clients ought to be reviewed – just as your clients are probably reviewing which external law firms are best equipped and skilled for their eDiscovery.



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