The Guardian, the Rolls Building and me

August 22, 2011

“Fancy you being quoted in Communist paper today!”. Thus read an e-mail received as I was boarding the plane for Nashville. The reference is to an article published in Saturday’s Guardian headed Rolls Building court complex can make London ‘global legal centre’, where  a quotation from an article of mine does indeed appear. The quotation is accurate, I gave my permission for anything I had written to be used, and I stand by it. It is, unfortunately, preceded by a sentence which does not represent my view and which could not be inferred from anything I have said. I will come back to that in a moment.

First, though, why should my correspondent be surprised that I am quoted in a “communist paper” (his words, not mine) like the Guardian? It would be fair to say that my views and those of the Guardian’s readership do not overlap very much. I am not altogether sympathetic with the idea that any problem can be solved by raising taxes and throwing a few thousand more civil servants at it; I don’t buy the idea that society is improved by a focus on rights without a concomitant emphasis on responsibilities; I deeply resent the fact that any sensible discussion about differences between people - differences of colour, race or gender – is stifled by immediate accusations of racism, xenophobia or sexism from people too intolerant, and too convinced of their own rightness to allow the subject to have an airing at all; I strongly disapprove of the idea that the state has an over-riding role in protecting us from our own decisions, even before considering the moral and intellectual shortcomings of the politicians and all those low-grade little people who purport to tell us what to do. I once got into serious trouble with a young idealist for using the expression “the Guardian-reading public” as shorthand for a whole class of wet, woolly thinkers whose claimed liberalism is in fact a severe de facto form of oppression.

That does not stop me reading the Guardian from time to time – it is wrong to dismiss views which are different from one’s own without at least trying to understand them, even if “the Guardian-reading public” does not reciprocate the courtesy; besides, the paper itself is more thoughtful than most of its target audience is about these things.

There is one area in which the Guardian has an increasingly important role – the quality of its law reporting. The Times used to be pre-eminent at this, but one rarely finds anything about the law worth reading in The Times now. I am not sure whether this is because they frig around with the layout so much that whole chunks disappear from view or whether the law has been edged out of the paper by its recent emphasis on celebs, fashion, sex and other people’s emotional problems. The Guardian, meanwhile, has gone from strength to strength on legal matters, both in the print and electronic versions and on Twitter. Read the rest of this entry »


ILTA 2011 comes to life at Nashville

August 21, 2011

ILTA 2011 is slowly coming to life downstairs, but the Gaylord Opryland Resort and Convention Center is so large that I am getting my information about it from tweets rather than from my own observation – there could be a London-style riot going on at the other end of this complex and you would not know it. I will put up some photographs in due course, though you really need the wide-angle lens which I left at home to get any impression of this place.

I’m not convinced that I could accurately have pointed to Nashville on a map before planning this journey and, indeed, since I don’t plan my journeys any more (my blessed wife does it for me) the journey just involved following instructions. BA gave me what they call an “involuntary upgrade”, with that curious implication that one might decline the opportunity to sleep horizontally, be offered food which is actually edible, and have access to a power outlet.  Changing terminals at JFK was a doddle thanks to the inter-terminal train, and it is worth recording (because one often hears differently) that the airline and security staff were welcoming and helpful, with apparently spontaneous smiles and offers of help if one looked at all uncertain.

On the small plane from JFK to Nashville I came across Charles Christian of the Orange Rag, the Legal Technology Insider and the American Legal Technology Insider, Rob Lancashire of digital dictation company BigHand, and legal technology writer Joanna Goodman. Charles introduced me to Rob Lancashire as “an expert on digital dictation” which is rather like introducing an occasional car driver to a Formula 1 engineer as an “expert on cars”. I am merely a user, whereas Rob Lancashire is BigHand’s managing director for UK legal and professional services. Read the rest of this entry »


Three new sponsors and HP buys Autonomy – all in a week’s work

August 20, 2011

This was never going to be a relaxing week, sandwiched as it was between a conference in Singapore and ILTA 2011 in Nashville, Tennessee. At least I had written all my Singapore articles by the time I landed at Heathrow at dawn on Monday, with their themes of judge-led litigation processes, judicial intolerance of eDiscovery unreadiness and South East Asian business and educational ambitions.

ILTA is a fixed entry in the calendar of anyone interested in litigation technology. On the surface, it is a more relaxed event than most of the others, taking place in high summer, in casual attire rather than suits, in a resort, and spread over five days. A lot happens there, however, quite apart from the fact that Nashville is a long way from Oxford, England or, indeed, from anywhere – the journey time is the same as to Singapore with the added excitement of having to change terminals at JFK.

Like certain other things – conflicts between my sponsors, the revolting coffee on aeroplanes, and the unwanted attentions of legal PRs – these things go with the territory which I have staked out for myself, and are a small price for involvement in a global business which is worth billions, which I am passionate about, and which is occupied by interesting and likeable people. it is also a young industry, with the opportunity which that brings to make the weather and not merely to report on it.

What makes that possible is my involvement with those companies whose logos appear on the right-hand side of this page. Between them, they cover the full range of software and services used for electronic discovery in every jurisdiction in which discovery is a relevant concept. Their sponsorship does more than provide the time to write and the opportunity to go where the action is. It also gives me a direct line to the senior people in the industry, and the ability to get involved with the development of rules and the connections with judicial thinkers, things which do not of themselves create a viable business.

The addition of three new sponsors in one week may be a coincidence; I think in fact that it tells us something about the state of the eDiscovery and information governance market and the direction in which it is going. Read the rest of this entry »


You collect the loot and a forensic expert will collect the evidence

August 19, 2011

One would hope that every lawyer engaged in litigation is aware that specialist experts exist who can collect data from computers in a manner which will stand scrutiny in a court. Actually, I have no such hope, since I come across lawyers who have either never applied their mind to this subject or who think that forensics is a deeply mysterious black art, or perhaps part of the syllabus at Hogwarts.

The collection of data in a forensically sound manner is only a part of of skills and services available from a forensics expert, the criminal courts are not the only place where you might need such skills, and computers are not the only source of evidence which is digital. Many civil and, indeed, matrimonial, cases require such evidence; data involves more than documents; and computers are far from the only source of digital material. Last, but not least, you may need the service of such an expert to disprove an allegation made against a client as much as to prove a case.

it may not be immediately obvious that there is a connection between the recent civil disturbances in the UK and the work of a forensic expert. You may be interested in an article published this week in the Manchester Evening News and headed Hi-tech methods that will catch Manchester rioters about the work which CY4OR is doing to help the police identify those responsible for the disorder. That involves enhancing CCTV images as well as collecting data from the telephones and computers of those suspected of involvement. Nor does the investigatory work end with the suspects’ own devices – social media like BlackBerry Messenger or Facebook, as well as eBay, are possible sources of information relevant to every aspect of alleged involvement in the riots, from encouraging others to join in through the actual events and on to the tracing of stolen  goods.

CY4OR have their own article about this here. One hopes that riots will not be a regular component of a lawyer’s work, but high-profile incidents like this serve as a reminder of the very wide range of evidence which can be collected – or rebutted – by the use of a forensics expert.

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Huron Consulting goes with Nuix

August 16, 2011

I rarely pass on press releases without some accompanying context, focusing on a few big articles rather than many snippets, but this one headed Huron Consulting replaces Autonomy with Nuix caught my eye as it was published.

Nuix provides software for electronic discovery, investigations and for information governance. Huron Consulting Group provides a range of business consulting services including eDiscovery and related services under the banner Huron Legal. Huron recently acquired the well-known UK-based eDiscovery service provider Trilantic.

Nuix is a pure software company, making its applications available either in-house or through services providers like Huron and many others. To have someone in Huron’s league say of Nuix that “there really was no competition” is a good endorsement to have.

Both Nuix and Huron will be at ILTA 2011. Nuix is offering a “$1,000 giveaway” to those who follow it on Twitter and tweet the phrase found on their competition page. Judging by the number of hits I have found for “Nuix” whilst searching Twitter for a link to the Huron article, Nuix is gaining many followers with this idea.

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A court-led eDiscovery initiative in Singapore

August 16, 2011

I thought I had done with Singapore for a bit, at least until October when I am back there for the InnoXcell eDiscovery conference on 31 October.

A news item on the Asia Legal Business Online website seems worth passing on, however. Headed Singapore: Electronic Discovery Initiatives Launched in Legal Sector, it reports that a steering committee, including representatives from the courts and other interested bodies, including law firms, has been set up to investigate various ways of improving document review, case management and the exchange of discoverable documents.

I will keep in touch with this interesting development and let you know more as things develop.

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Conferences coming up: ILTA and the Legal Technology Leadership Summit

August 14, 2011

With Singapore behind me (well almost, I am still here as I write this, in the BA lounge, waiting to fly) I can turn to the next two events in the eDiscovery calendar.

Next up is ILTA 2011  at Gaylord Opryland Resort in Nashville, Tennessee from August 21 – 25. The website still shows that registration remains open. Anyone with an interest in legal technology should be there for ILTA’s unequalled range of educational sessions, vendor displays and the opportunities to kick ideas around with people from law firms, providers and others. I will be there, and look forward to meeting as many as possible of those who are kind enough to read this blog.

September 6-8 brings the Legal Technology Leadership Summit 2011 at the Ritz-Carlton, Amelia Island, Florida, presented by Above the Law  in conjunction with the Electronic Discovery Institute. The latter is an important resource for serious and practical thought about the issues raised by electronic discovery. The rest of the world may not appreciate every aspect of the US approach to discovery, but we can certainly learn a great deal from high-level conferences like this. Read the rest of this entry »


Rapporteur rounding up the Singapore Electronic Litigation Conference

August 14, 2011

It was a privilege to be asked to be one of the rapporteurs at the end of the International Electronic Litigation Conference in Singapore. Bryan Ghows of UniLegal LLC spoke to one group and I the other, with ten minutes to round up the proceedings. Unusually for me, I actually wrote down in advance what I intended to say, and I give it here as the finale to my series of articles about this excellent conference:

It is proper, at an occasion like this, to address by name or title all the most important people in the room. There are many of you and I have only ten minutes so I will instead simply address “Kind hosts and welcome guests”.

I should say that listening to speeches during lunch is one of my pet hates at these conferences – you have just got a good flow of conversation going and then have to break off and listen to someone speaking. I tried to get out of it by suggesting to Senior Assistant Registrar Yeong Zee Kin that an audience of this calibre does not need to be told what they have just heard, but he said it was proper and it is there in the programme. There is, perhaps fortunately, not much time, so I will pick what seemed to me to be the most lasting points. Read the rest of this entry »


Senior Master Whitaker raises the eDiscovery stakes for unprepared litigants

August 14, 2011

You are busy, I know, and here is another 3,000 words to read. I will repeat here at the top the paragraph with which this article ends, as a taster for what Master Whitaker said in his plenary session speech at the Singapore International Conference on Electronic Litigation.

If Master Whitaker’s opening premise was that businesses are concerned about the costs of discovery, the real concusion from what he said is this: however important the role of judges, whatever is provided as rules, practice directions and court guidance, and however good the technology becomes, the key lies with the clients, both in the way they keep – and destroy – their documents, and in how they select and instruct their lawyers.

Senior Master Whitaker’s talk was headed International Developments in Electronic Discovery. In introducing him, Nicholas Peacock of Herbert Smith referred to Master Whitaker’s other formal title, the Queen’s Remembrancer. That role, he reminded us, was established in 1154; how interesting, he said, that the oldest judicial post in England and Wales should now be at the “cutting edge of bringing technology into the law”.

It is conventional to be polite to your hosts on such occasions, but Master Whitaker clearly meant every word of his opening. Singapore, he said, was a member of a select club of jurisdictions requiring common-law discovery, and punches above its weight in electronic discovery, as appears both from its practice direction and from various decisions. He praised its “forward-looking Chief Justice” (see my post Opening a world class agenda at Singapore Electronic Litigation Conference for a report of the latter’s speech). “Majulah Singapura”, he said, this being Malay for “Onward Singapore”, the nation’s motto. He paid tribute to Senior Assistant Registrar Yeong Zee Kin for his part both in advancing the court processes in Singapore and for his role in organising the conference.

He was, he said, proud of the connection between the Queen’s Bench Division and Singapore which, he said, would continue for as long as he was Senior Master. Read the rest of this entry »


The Singapore Electronic Litigation Conference comes to an end

August 13, 2011

The International Conference on Electronic Litigation came to an end here in Singapore yesterday. I have already given you the core statistics – more than 350 participants from 36 countries. I am staying on until Sunday – as on my recent trip to Hong Kong, the exorbitant airfare for a return on Friday or Saturday far outstrips the cost even of this fairly grand hotel. I don’t mind that, really. I am more likely to get my conference reports written if stuck on my own here than at home.

Lord Justice  Jackson and Vince Neicho of Allen & OveryBrad Mixner of Litigation Edge Pte Ltd and Global EDD Group has been keeping the official conference blog which you will find here, reproducing my posts as well as writing his own, with some photographs in addition (the rest of us were banned from taking photographs, as I have noted before, and the one here of Lord Justice Jackson and Vince Neicho of Allen & Overy is taken with thanks from the official blog).

As you will have gathered from my earlier posts, the conference was not just about electronic discovery but about case management and the whole court-led end of the litigation process. A recurring theme in my posts about the event is that the court really does lead here in relation to the rules, the development of court processes and the wider economic implications for Singapore of becoming the leading jurisdiction in the region. Read the rest of this entry »


Lord Justice Jackson in Singapore: Piloting Civil Justice Reforms

August 11, 2011

The best judicial advocates of proportionate electronic discovery emphasise that, however significant the costs and other implications of discovery, they are but a part of a wider duty to make justice affordable. That duty is distributed – it lies with the judges charged with managing cases and those who devise the rules and procedures; it falls on lawyers and on their clients whose justice is at stake; it is part of the duty of government. Lord Justice Jackson touched on all these in a speech in Singapore which began with Plato and Aristotle and, precisely 45 minutes later, came back to them. The occasion was the International Conference on Electronic Litigation organised jointly by the Singapore Supreme Court and the Singapore Academy of Law.

I do not usually rush out reports of speeches on the day of their delivery, preferring a more leisurely approach with reflective comment. This is a straight transposition from my notes, with little critical or or analytical thought applied.

The evidence in Aristotle’s day, Sir Rupert said, fell within a manageable compass. The instant communications now critical to business were not a boon in all respects. They remain in permanent form to be studied by those with the time and motive, subjected to a full and painstaking analysis by lawyers, and generating “prodigious and sometimes terrifying costs”. Read the rest of this entry »


Opening a world class agenda at Singapore Electronic Litigation Conference

August 11, 2011

The first morning of the Electronic Litigation Conference organised jointly by the Supreme Court of Singapore and the Singapore Academy of Law has yielded so much of interest and importance that I am in danger of losing it if I do not note it up straight away. Quite apart from anything else, I am due to give a summary to the judicial and other VIP delegates and guests at lunchtime tomorrow, and must stand back from it a bit to be ready for that.

We started being impressed before the first speaker had opened his mouth. A large room is packed with rows of seats, with judges and other VIP speakers and guests at the front and the rest behind. So far as I could see, every seat was taken. The organisers are courteous but firm, imposing a degree of discipline which keeps us in our place. The rules include a ban on photography, so my posts will be missing their usual illustrations.

The proceedings were opened by the Honourable Justice Lee Sieu Kin, a judge of the Singapore Supreme Court and chairman of the conference, who told us that we had over 350 guests and speakers from 36 countries. The original plan, he said, had been to focus on electronic discovery, but it had become clear that other related technology developments, including the use of social media, warranted places in the agenda. He introduced the Honourable Chief Justice Chan Sek Keong, President of the Singapore Academy of Law, to give the opening address. Read the rest of this entry »


Jumping Jurisdictions: EDiscovery from California to Singapore

August 10, 2011

I am sorry about all those words from my brief stopover in the UK between California and Singapore – 11,100 of them, 1000 per day and one word for every mile flown to get there and back. What is alarming is that none of those posts formed part of any backlog – this is all current stuff sprung either from the Carmel Valley eDiscovery Retreat or from other things which have developed in what is supposed to be a quiet month.

It is, I know, more helpful to spread them out and it is possible, in fact, to go away and leave articles to publish themselves. I did not do that because many of them cross-link and you can only link to a published article. Equally, I could publish them from Singapore, which is where I am now, but the agenda here is full enough of new material without having to deal with what will by then be old stuff. Exciting times, represented graphically on my blog stats by three spikes reflecting interest in recent topics.

I am in Singapore for the International Conference on Electronic Litigation organised jointly by the Singapore Supreme Court and the Singapore Academy of Law. This was originally to have been a discreet affair hosted in the Supreme Court building, but so many people signed up for it that it has moved to the Marina Mandarin Hotel. Read the rest of this entry »


Final round-up of the Carmel Valley eDiscovery Retreat

August 8, 2011

My reporting of the excellent Carmel Valley eDiscovery Retreat has been rather dominated by my post Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat. Frankly, if that had been the only session it would have justified my 11,000 mile round trip. There was plenty more, however, both on the agenda and in the discussions at this pleasant and relaxed venue.

The judicial panels were excellent. At first sight, it seems rather odd to have two judicial panels on successive days with the same moderator and participants. The second one was the only event on Day 3, not an easy time to attract an audience at a venue which offered many alternative attractions. It was a tribute to the panel that the second show attracted a good audience.

Diane Barry was the moderator and the panel comprised US Magistrate Judge Andrew Peck, US Magistrate Judge Elizabeth Laporte, Martin Quinn from JAMS and Judge Hon. James L. Smith (Ret.), also from JAMS.  JAMS, for those who don’t know (I did not) is the largest private alternative dispute resolution (ADR) provider in the world. You have to work quite hard to find that JAMS is an acronym for Judicial Arbitration and Mediation Services, Inc.

They covered a lot of ground over the two sessions, pursuing interesting lines as they came up rather than sticking to a pre-structured agenda. I propose simply to pull out sentences which catch my eye from my notes, without necessarily attributing them to a particular person. Read the rest of this entry »


A Flock of Articles on Computer-Assisted Document Review

August 8, 2011

What tells the swallows to gather on the telegraph wires before starting their migration southwards? One has to ignore, I think, the possibility that the telegraph wires are part of their communications network. Perhaps the birds all use an avian version of Twitter. Perhaps, indeed, that is why Twitter is called Twitter.

The subject comes up because last week saw a number of articles about computer-assisted document review after what I described recently as A Lull in the Predictive Coding Battle. These do not appear to be copycat articles (except this one, which is expressly reactive to the rest) and each of them must have been written in ignorance of the fact that others were also writing on the subject. There appears to be no common springboard, and they are comment articles rather than combative ones by participants. Perhaps everyone needed to write one last article before pushing off on holiday and this was thought to be an easy subject.

That conclusion does not in fact do justice to the quality of some of these articles. For those of you who do not have Twitter permanently open on a dedicated screen, it might be helpful if I draw attention, without great commentary, to the more interesting of them. I should say, incidentally, that I do not by choice do two big articles on the same subject within a a few days – there is plenty of other good technology out there, other areas of eDiscovery / eDisclosure of significance and much to write about that is not directly about technology at all, such as the certification debate. The real theme here, and the reason why these articles are worth capturing in one place, is that they encourage investigation into what is right for your cases, which may be something far less sophisticated than the predictive coding technology which gives this spate of articles its label.

If I include my own one first, it is because of a comment which came from a reader and not because it needs another airing so quickly. It was called Judge Peck and Predictive Coding at the Carmel Valley eDiscovery Retreat and its timing followed the speech it reported. Reactions included an e-mail comment which, whilst approving of the article itself, reckoned I had omitted one important subject. Lawyer adoption of discovery technology is slow, my correspondent said, because lawyers earn a great deal of money from manual review and have no interest, in any sense of the word, in investigating ways of reducing the chargeable hours.

I left this subject out of my article mainly because it formed no part of the speech which I was reporting. I don’t mind being discursive (you can go elsewhere for the short, snappy stuff) but some articles must stick to their headlined themes, and this was one. Besides, once you start looking at what are colloquially called “vested interests” (“colloquially” because the true meaning of the term has a narrow legal sense) where do you stop? Every change in business practices brings winners and losers. If you talk up technology solutions, you appear to be running down outsourced document review (you are not, or, at least, I am not – it is the informed choice which matters); reduce discoverable volumes and you hit hosting fees; reduce lawyers’ chargeable hours and – well, they have to find a better way of offering value to their clients. That is how business evolves. Read the rest of this entry »


The Value of eDiscovery Self-Collection Tools

August 8, 2011

I mentioned in a recent post that membership of Guidance Software’s Strategic Advisory Board brought the pleasure of seeing developments work through from concept to production to adoption. One of the most exciting of these was Guidance’s EnCase Portable. The subject comes up now because Sean Doherty in Legal Technology News wrote an article headed Compare and Contrast: eDiscovery Self-Collection Tools which, as well as mentioning some of the players, including  AccessData, Guidance Software and Pinpoint Labs, gives a good summary of the value of tools like this and an explanation of when and how they are useful.

Unlike Sean Doherty, I am not in a position to do a “compare and contrast” piece on these products. I do, however, know two of the companies well because Guidance and  AccessData are sponsors of the eDisclosure Information Project.  I have suggested before that these tools have a place not merely in the hands of professional collections experts but within companies and law firms. Not every collection warrants the attendance of an external expert: an HR department may think it necessary urgently to collect data from an employee’s laptop; a lawyer may be interviewing someone whose potentially relevant laptop is right there in front of them.

The names of these products are pleasingly apt –  Guidance Software’s EnCase Portable and AccessData’s AD Triage neatly summarise their functions in their names. It would not take much for a company or firm to compare these leading products and to equip someone with the skills to use it

They have another benefit as well. Small and inexpensive they may be, but they offer a convenient and accessible way of illustrating to lawyers and others what kinds of information can be found on and taken off a computer. This can be an eye-opening experience for lawyers who might otherwise assume that information of this kind is lost or otherwise unavailable. Looked at from one point of view, this is positive skill to have; looked at more negatively, the failure to realise that potentially crucial evidence can be tracked is potentially negligent when mainstream tools of this high capability are available at low cost.

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Consider document review services as well as technology

August 8, 2011

The recent dominance of predictive coding and other forms of computer-assisted review in these pages and elsewhere reflects as well as reports on the growing interest in this kind of technology. It is also inevitable that the discussion has been led by US thinking on the subject because that is where most of the discussion happens.

I have tried in my own articles to walk a line between giving an uncluttered view of the predictive coding debates and emphasising that this is merely one of several options  which must be considered by those charged with the management of large volumes of electronic data. This type of technology is not for everyone nor for every case and, as Greg Wildisen of Epiq Systems said in my discussion with him (see Strong eDiscovery behind the Q2 numbers at Epiq Systems) there is often a balance to be struck between the time and cost considerations when considering human and technology input.

The UK does not have the vast armies of contract lawyers which are common in the US. Those who have a lot of documents for review, however, ought to be aware that there is a thriving and competitive market offering document review services in the UK to be considered alongside, or more usually in tandem with, a technology solution.

I have already mentioned Epiq Systems’ document review service in the article referred to above. I was in the London offices of Huron Legal recently. When I first went there, for the office opening, the review pods had just been set up. Now there were two teams of reviewers hard at work and I was told that this had been the case since the service was launched. Hobs Legal Docs, one of the few UK providers still with a strong paper-handling division, necessarily provides manual coding to go with it – unlike most electronic data, scanning paper requires manual work for mere identification quite apart from any decision-making implicit in the term “document review”. Read the rest of this entry »


Strong eDiscovery behind the Q2 numbers at Epiq Systems

August 8, 2011

I have made it clear in an earlier article that analysing the detail of company accounts is neither one of my strengths nor my interests. One has to pay some attention, however, to an announcement which reads Epiq Systems announces 2011 second-quarter results led by eDiscovery operating revenue growth of 96%.

Epiq Systems acquired Encore Discovery Solutions on 4 April 2011, so this quarter’s figures are complicated, on the one hand by acquisition costs and on the other hand by a new revenue stream. I will leave you to read the figures for yourself, but I draw attention to the emphasis given in the notes to “the strength of Epiq’s organic growth across the heritage eDiscovery business”. Epiq was doing well anyway, in other words, even without the Encore business. When the two strands are added together in a strengthening eDiscovery market, the results are impressive.

As always, I am more interested in what we can deduce about the market generally than in any one provider’s figures, and more interested in what the company’s senior people say in conversation than in the necessarily stripped-down accounts notes. I pick Epiq in part because it  provides a balance to the spate of articles from me and others whose focus has been the sophisticated technology of predictive coding. I have another long article coming up on that, but it is important to emphasise (as I have done in my articles) firstly that not every case needs a sophisticated technology solution and secondly that the key lies in understanding the range of options available. Epiq’s IQ Review process and its proprietary review tool DocuMatrix offer predictive coding by the incorporation of Equivio’s Relevance product. They also, however,  have a document review service and, with the acquisition of Encore, open the door to a wide range of applications – an antidote, therefore, to the idea that it is predictive coding or nothing. I will have more articles to similar effect shortly.

I spoke to Greg Wildisen, Epiq’s International Managing Director, and he went straight to this point. He did not give me the details, but a recent case handled by Epiq had required that a population which grew to 80,000 documents over the short life of the project had provided a good example where the balance of time and cost considerations had required a concomitant balance of human review and technology. Neither would necessarily have done the job on its own within the budget and timeframe, but a consultative approach and good project management had brought in the right resources at the right stages to get the job done. This is a point which goes wider than just Epiq – someone must have an overview. Read the rest of this entry »


Excellent source on New Zealand eDiscovery reforms

August 7, 2011

New Zealand is a common law jurisdiction requiring discovery of documents in broadly the same way as the UK, Australia, Canada, Singapore and Hong Kong and, at a little more distance, as the US. It is not necessarily a disadvantage that it has only now turned to considering what rules and procedures are necessary to manage electronic discovery.

The best source of information on New Zealand developments is the blog run by Andrew King of E-Discovery Consulting in Auckland. I knew Andrew a little when he was a law firm litigation support specialist in London, and met him again in Sydney last year when Senior Master Whitaker and I brought him up to date on the then developments on the eDisclosure Practice Direction and Electronic Documents Questionnaire which have since come into force in the UK.

I give you no analysis of my own, for now, but simply refer you to two posts by Andrew King. One, dated 14 July, is headed Final Draft of the New NZ Discovery Rules Released, which summarises the issues which had been addressed, and referred readers to the draft rules. Andrew has now produced a useful summary headed NZ eDiscovery Reform – a Global Context which does what the title implies and reviews developments in other jurisdictions.

I await developments in New Zealand with interest as part of my general self-imposed remit to keep up with developments in all the jurisdictions which are focusing on court-led eDiscovery. When the opportunity arises, I hope to go to New Zealand to find out more about what is happening there. Meanwhile, Andrew’s blog is a source to bookmark.

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Drawing conclusions from Guidance Software’s Q2 2011 financial results

August 7, 2011

I do not claim any expertise in deciphering trends from the quarterly figures published by the leading players in the eDiscovery industry. I know what I am good at, and the analysis of corporate accounts is not on the list. I shy away from the subject for other reasons as well:  if one comments on one company’s figures then others might expect theirs to be reviewed; if you report on good figures then you should equally draw attention to disappointing ones.

Occasionally, however, one can draw conclusions from the narrative part of the accounts which say something about the industry generally, and I do occasionally draw attention to the figures for this reason.

If I have a particular affection for Guidance Software it is partly because it was the first big player in eDiscovery to back the eDisclosure Information Project. I have done many conference sessions with Guidance over the years and enjoyed them all, both for their own sake and for the evidence of commitment to market education which they bring; I have for three years sat on its Strategic Advisory Board, having the pleasure of tracing progress from those discussions through to product launches and other developments. Guidance Software also has links to other players including a new connection with kCura, the latest sponsor of what I do.

There are other reasons, also, for an interest in Guidance Software’s figures: sitting as they do at the front end of the eDiscovery process, their numbers say something about the state of the industry generally; in addition, sales of network collection software to the higher end of the corporate market suggests that companies are taking seriously the compliance and investigations benefits of a standard collections process as well as the requirements of litigation.

The Q2 report itself is here. The highlights include a 5% increase in overall revenue against the second quarter of 2010, with product revenue flat but services and maintenance revenue up by 11%. The statement by President and CEO Victor Limongelli draws attention to the launch of Version 7 of EnCase Forensic, to Guidance Software’s position in the Leaders’ Quadrant of the Gartner Magic Quadrant for eDiscovery Software, and to the addition of 65 new customers on the EnCase Enterprise platform, bringing the total to more than 1,000 customers, a figure which, I am told, includes over 60% of the Fortune 100.

Any company willing to forecast year over year growth of 8% to 12% (that is, between $99 million and $103 million) in this very public context at the half-way stage in the year obviously has confidence not only in its future but in the prospects for the market generally. I asked Victor Limongelli for his observations on this; he said “Customer adoption is accelerating – we have added more new customers in the first half of the year than we did in all of 2010.  Every company needs to address unstructured, unmanaged data, and we are seeing more and more of them doing something about it.”

Not everything which is collected goes through to being processed, analysed and reviewed – that is part of the point of having an easy way to collect data which you might need as opposed to merely that which you must collect. Nevertheless, the corollary is that those who sell review applications and offer software and services need to see an increase in collections to underpin their own growth. These figures therefore look promising not just for Guidance Software itself but for its rivals in the collections space and for those who sell downstream solutions and services.

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Ducking the eDiscovery Certification Battle

August 5, 2011

I am not sure that I can face the battle which is presently raging in the US about certification of electronic data discovery professionals. It is a subject on which I have written before, coming down, in general terms, against demands for a professional qualification and the concomitant growth of a certification industry.

There is no doubt that more (by which I mean better) skills are needed by those who purport to offer services and advice in this most critical and expensive component of litigation and other document-heavy activities. The objections come under various headings: a certification requirement is a barrier to entry in a market which desperately needs recruits; many of those recruits will be people who move sideways from other areas – people with skills we need but who will have not have formal qualifications; a certificate is valueless in the absence of some objective standard and it is hard to see who will set the standard; the whole process tends to monopoly and there is a risk that one big provider will control the new generation’s thinking; analogy with nursing training in the UK suggests not only that we lose good entrants but that we breed a new tier of busybody bureaucrats more focused on their career plans than on the profession; and so on.

Since I last wrote about this, the certification industry has grown as predicted and “Organisations offering to certify electronic data discovery professionals are sprouting up faster than dandelions in May grass”. This forceful way of describing the situation comes from an article by Patrick Oot with the uncompromising heading eDiscovery Certification: Sham exams? Patrick’s opening sentence continues “…and preying on the members of our legal community who may be the least able to afford the ‘services’ and may not realise how flimsy the certifications may be.” Read the rest of this entry »


Zubulake comments and my comments about her comments

August 2, 2011

Laura Zubulake has commented adversely on my post Zubulake in her own words at Carmel. Someone whose name appears in the title of a post is obviously entitled to be heard in response and I must equally obviously reply, albeit with the slight fear that a tennis match will result – I would not want Ms Zubulake to take more time out of her presumably busy ediscovery consultancy practice to engage in debate with some Englishman of whom she has not heard. She has gone on to chase me to publish her comments, so presumably missed my clear statement that I was on holiday – not the only part of my blog which she seems to have missed. If she had read to the end of that post and skimmed the 872 eDiscovery posts which preceded it, it would have been clear what my mission is and why I was disappointed that the eponymous heroine of Zubulake v UBS had not used her name and status to fight for a more proportionate approach to ediscovery.

Disappointment should not be confused with naivety. Equally, Zubulake is not fair on herself. As well as disregarding my context, she has either ignored my genuinely-meant compliments or positively rejected them. My lament was not about what she did say, and certainly not about her presentation of it, but about what was left unsaid. Are we really content with a post-Zubulake world in which, for all the developments in technology, in the rules, and in thinking by the likes of Sedona (all of which she mentioned), the ruinous legacy of her victory remains the standard? One feels that she might have mentioned what I said about that, since that was what my article was really about.

It would be fair to say, I think, that Ms Zubulake saw my article as being all about her. In truth, I had bigger fish to fry. One can give her credit - as I did more than once - for fighting her own battle and winning, whilst nevetheless regretting the wider consequences of her victory. My historical and other parallels seem not to her taste, but I will risk another one: 1940 Britons could admire Rommel’s Blitzkreig attack to the Channel ports whilst being deeply concerned at the implications of its success.

Zubulake’s victory, great though it was for her, was the moment that proportionality nearly died in US civil litigation, and the moment when form and proceeding-with-the-procedures edged out common sense. From that moment parties have had to behave as if every opponent was guilty of concealment whilst defensibly exaggerating their own efforts. We have to make a stand against that, to reach a compromise between formal compliance, completeness and cost, and between all of them and the real objectives – the clients’ objectives, the “just, speedy and inexpensive” objective in FRCP Rule 1 or the overriding objective in the UK. Read the rest of this entry »


Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat

August 2, 2011

US Magistrate Judge Andrew Peck’s keynote speech at the Carmel Valley eDiscovery Retreat was one of the clearest statements yet by a judge that the use of new technology like predictive coding is an acceptable way to conduct search in appropriate civil litigation cases. Though necessarily limited to US courts in terms of direct influence, what he said applies in any jurisdiction requiring electronic discovery. What are you waiting for?

I know what you are waiting for: you think that one day a judge will deliver an opinion or a judgment (depending on your jurisdiction) which says in terms that a particular kind of technology is approved by the court. I know that, because I keep reading articles which say that predictive coding has not been approved, and such statements make sense only if there is a realistic expectation that approval might both be forthcoming and binding outside the court and matter in which it is given. Perhaps you have a mental picture of the occasion: “It is the opinion of this court that the use of predictive coding is a proper and acceptable means of conducting searches under the Federal Rules of Civil Procedure / Civil Procedure Rules / [Insert name of local rules] and, furthermore, that the software provided by [insert your favourite vendor here] is the software of choice in this court”.  Perhaps the judge will go on to praise the car in which he or she drove to work, offer an endorsement for the floor polish used in the court, and give a quick puff, as it were, for his or her favourite brand of cigarette. IT’S NOT GOING TO HAPPEN.

There are various reasons for this, apart from possible breaches of judicial ethical rules. How was the application used? By whom? For what kind of case? What alternatives were or should have been considered? What did it cost and what did it save?

There is something pernicious in this waiting for the impossible. It means that many lawyers and their clients are not focussing on what modern technology can do for their cases but on what some notional judge might think. They are not informing themselves, developing faith in their own judgment and backing that faith with their fees and their actions, but making do with the old way of doing things until a judge has said it is all right to do something different.

One of my plans for a summer which seems to have gone already was to go back through my accounts of the many judicial panels and webinars which I have heard and seen in the last twelve months to pull out the many positive references to technology made by respected judicial figures on both sides of the Atlantic. I might yet get to this, but Judge Peck’s speech at Carmel covered all the necessary ground. Read the rest of this entry »


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