Barristers, Berlin and the Bribery Act – an eDiscovery Compendium Part 1

September 30, 2011

The three words beginning with “B” in my title are a random selection from the top of my running list of things to write about.  They all have a connection with eDisclosure / eDiscovery which is not necessarily obvious (barristers and disclosure? Surely solicitors deal with that?).  The list might equally have read “Pennsylvania, Peck  and Model Order”, which would have been equally random and equally discovery-related.

I rarely do compendium articles which sweep up a lot of subjects. A mass of interesting things, however, has turned up about eDiscovery in the same week as I prepare for a run of events – seven of them, in six different countries in five weeks, with another shortly afterwards. Each of them requires at least an outline to be written; they involve liaison with others; not least, they require bookings to be made and some system to be created which ensures that I turn up in the right country, on the due date and with the right set of notes. I leave for the first of them tomorrow.

The result is a long article which picks up as many as possible of the strands which have been flying by. Google Plus will one day be a very good tool for this sort of thing. At the moment, my G+ audience would be about 10 people against the 200 or so page views per day on this blog and over 900 Twitter followers. A compendium article has the side merit of showing in one place how many different components of business life are touched by eDiscovery – which is in fact the theme of at least one of my talks. I break the article into two – this one about the journeys and their relevance to eDiscovery generally, and a second which flicks through the incoming material. Except where I am referring specifically to the UK rules, I will stick to the term “discovery’ and try and ignore the faddy word “disclosure” which came into our rules in 1999 in the curious hope that the label change would improve matters.

My conferences page shows what the events are and has hyperlinks where relevant (hyperlinks are the bane of my life and I will not repeat them all here).  In summary, I am doing a panel on early case assessment with Digital Reef in Washington and then going straight to Dublin where I am doing a UK and common law round-up with Senior Master Whitaker, and a US updates session with Browning Marean of DLA Piper US at eDiscovery Ireland 2011. After part of a weekend at home, I go to Berlin to give a speech to IQPC’s conference, on worldwide eDiscovery developments and why they matter for EU companies. I am back home for three days before going to Sydney for the Nuix Exchange, to join Senior Master Whitaker, US Magistrate Judge Andrew Peck, Craig Ball, David Cowen of the Cowen Group and others at an event which promises to be both intensely educational and extremely pleasurable. Read the rest of this entry »


ECA with Digital Reef at the Masters Conference in Washington

September 29, 2011

The Masters Conference for Legal Professionals takes place in Washington on 3 to 5 October at the Ronald Regan Centre. I will be there, as always – this is one of my favourite events in the calendar, and often my only excuse to go to Washington each year.

The Masters Conference has just released its full list of speakers which, as usual, includes well-known representatives from the judiciary, from law firms, from providers and from corporations.  I am taking part in a panel organised by Digital Reef and called Early Case Assessment: Is It Working? The moderator is Navigant’s Shawnna Childress and the panel comprises Steve Akers, of Digital Reef, Browning Marean of DLA Piper US, Bill Belt of LeClairRyan, Michelle Briggs of Goodwin Procter, and Hampton Coley of Hughes Hubbard & Reed.

I have done events with several of these people before. Shawnna Childress is a co-founder of Women in eDiscovery and a tireless promoter of eDiscovery education in addition to her day job. Browning Marean and I have shared platforms in most of the common law jurisdictions. Bill Belt and I do Virtual LegalTech webinars together, most recently on 15 September. I moderated a video with Steve Akers a few weeks ago. I anticipate a lively panel with this mix of people.

The rest of the agenda looks interesting, as it always does, with a judicial panel, a session on predictive coding and, not to be missed, the annual Women in eDiscovery panel, sponsored by AccessData and moderated, for the third year running, by AccessData’s Caitlin Murphy.

I will, alas, miss the last day – Browning Marean and I are both due in Dublin on Thursday for the eDiscovery Ireland 2011 conference.

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kCura Relativity Ecosystem Apps and on-line User Support are good marketing

September 29, 2011

I spent part of the weekend wandering around the websites of various litigation software providers (we do have fun on Sundays here). I was actually in search of quotations to support (or undermine, as the case may be) a proposition to go into an article.

I ended up on the kCura Relativity website. kCura is a relatively new sponsor of the eDisclosure Information Project and I was given a demo at ILTA – immersion in comparative functionality is not my primary interest in the eDiscovery / eDisclosure market, but I do like, every so often, to see what the user sees. The demo went a good way towards explaining why Relativity has been doing so well.

My tour of the website reminded me of two kCura points which I had wanted to follow up anyway – Relativity’s Ecosystem Apps and the materials and resources which it publishes for customers. The subjects are not directly related save that they both come under the broad heading of helpfulness to users and are both ways of building a community around a product.

Overt customer support appearing on the face of a website is a more powerful marketing tool than any quantity of material aimed specifically at attracting new users. The web site includes a lot of well-indexed documentation with tutorials and short videos to illustrate various functions and tasks. The customer portal does more than allow the submission and monitoring of support tickets; ideas can be submitted and viewed, discussed and voted up or down the priorities list. Even the customer portal has its own video tutorial.

I had the opportunity to test kCura’s responsiveness because a question came up while I was on their site. In general, I shy away from asking questions in mid-article because I then feel bound to await a reply. Shawn Gaines in kCura’s marketing department came back to me straight away with what I needed, which was pretty impressive on a Sunday. If technical support responds that quickly then users will have little to complain about.

One of kCura’s strengths is the ability of licence holders and third parties to extend the functionality of the software with their own applications, integrations and extensions. This has long been possible, but kCura has now formalised it under the name Ecosystem with a web page which provides information about existing apps. You can get some idea of what is possible by running your eye down the list. Some of these are kCura’s own apps – its Method legal hold software or apps to enable smaller admin functions; if you are able to include processing heavyweight Nuix in your library of apps then you are aiming high.

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Social Media Opportunities and Risks in the Workplace

September 29, 2011

A White Paper and webinar from ZyLAB draw attention to the marketing and network advantages, and to the corresponding discovery/disclosure risks, which come with the massive growth in social media use.

I am fairly sparing with both adjectives and adverbs in my writing, probably in reaction against marketing material which contains little else.Things positive and negative, and as varied as the sophistication of some technology, the beauty of a view, the conduct of most politicians, and the stupidity of bureaucracy and of so many of the people who impose and enforce it, can all bring out my inner Roget. For the most part, however, I am content to leave the colourful words to marketeers, tabloid journalists and Americans (though I was quite proud of the recent suggestion that I specialised in “understated hyperbole”). The growth in data volumes, and particularly that of social media, entirely warrants words like “massive” which appears in my opening paragraph.

I have a double interest in social media. Nearly all my business capital lies in my blog, and Twitter is both a marketing tool and a way of keeping in touch with developments and with people around the world. Wearing my eDiscovery hat, I am more than a little interested in the implications for companies of the volumes of data pushed out by a company, by its employees and by those who have dealings, positive and otherwise, with it from the outside.

My recent roundup Some Recent Articles on Social Media Use in Companies included reference to a paper by Johannes Scholtes of ZyLAB called Social Media: the Next eDiscovery Elephant in the Corner. ZyLAB have followed that with a further paper called Compliance in the Cloud: How to Deal with Social Media in the Workplace by Annelore van der Lint of ZyLAB.

That is accompanied by a webinar  on 27 October  to be given by Hanns Köhler-Krüner from HKK Consulting, expert on Social Business and ECM Media, and Johannes Scholtes, Chief Strategy Officer of ZyLAB and professor in text mining. The registration details are here. The registration page includes an opportunity for you to describe some of your own experiences of dealing with social media. Read the rest of this entry »


CY4OR and Manchester’s Deans Court Chambers Forensics Seminar

September 28, 2011

In the nick of time, I note that forensics and eDisclosure experts CY4OR are joining forces with Manchester’s Deans Court Chambers for an evening of presentations and discussions about digital evidence, starting at 5:30pm on 29 September – that is, today.

The speakers are Keith Cottenden, CY4OR’s Forensic Services Director, and Joe Hart, barrister of Deans Court Chambers.

The subjects to be covered include:

  • What electronic evidence may exist and can aid your case
  • How to secure that evidence
  • Technological advances in digital forensics
  • How digital evidence is presented in court
  • Recent case studies

Little or nothing is taught about digital evidence in the formal part of the education of solicitors or barristers, yet an increasing number of cases – commercial, criminal, matrimonial, employment and most other things – may turn on evidence from computers, smart phones and a wide range of other things. This is an opportunity to find out something about it and to meet up with others with a professional interest in the subject.

It is not too late to book a place. The registration details and a link to a flyer about the event can be found here.

Incidentally, CY4OR publish a useful email newsletter (which is where I came across this event). You can subscribe to it from their home page.

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Late eDisclosure application tacked on to pre-trial review at a cost of £47,000

September 28, 2011

Court decisions about procedural hearings rarely tell the full story. There may be all sorts of reasons why two good firms of solicitors should find themselves, three months before a 10-day trial, at a pre-trial review onto which had been tacked a specific disclosure application and an application to strike out parts of witness statements. There may also be good reason why one of those parties had clocked up £47,000 in costs – “a very large sum of money for a one hour application” as the judge said mildly.

The case is Omni Laboratories Inc v Eden Energy Ltd, and the hearing came before Mr Justice Akenhead in the Technology and Construction Court. I am obliged to His Honour Judge Simon Brown QC for drawing my attention to it.

The ruling is short and I will leave you to read it, merely pointing to the points which appeal to students of case management. Read the rest of this entry »


More on Software-Assisted Review as Applied Discovery and KMPG add Equivio>Relevance

September 27, 2011

Electronic discovery company Applied Discovery and KPMG are amongst those who have recently partnered with Equivio to integrate Equivio>Relevance into their existing eDiscovery applications. These two recent announcements give me an opportunity to return to the subject of software-assisted document review using what is generally known (but see below) as predictive coding. Recent discussions with some lawyers have shown scope for fundamental misunderstandings about what this kind of software does, and a look at the explanations produced by Applied Discovery and KPMG, as well as those of some other players in this space, may help.

My primary objective is clarity for those who come across the names and the terminology but are not necessarily clear as to the functionality being offered or its purpose. There seem to be three aspects which some lawyers find difficult about this kind of software, each of which is worth challenging. These are the following:

  • They think it is being sold as a substitute for human review of the documents which are to be disclosed. That is not its purpose. It provides (amongst other benefits) a means of identifying irrelevant (or less relevant) documents or, to put it the other way round, a way of prioritising documents so that those identified provisionally by the software as the most relevant or most important are brought to the top. The important word here is “provisionally”, with its clear implication that the lawyers get every opportunity to double-check both what has been ranked as important and what has not.
  • It is the subject of debate about judicial acceptability which, again, follows from a misunderstanding both of what it does and of what the courts expect.  You may care to read an article called Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat which reports on what I describe as “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”. Judge Peck’s immediate context may have been the US Federal Rules of Civil Procedure, but the principles which he covers apply anywhere, and the UK’s Senior Master Whitaker has said much the same both in conference speeches and in his judgment in Goodale v Ministry of Justice. Master Whitaker has also emphasised repeatedly the first point made above – that none of this software is intended as a substitute for human review of documents to be disclosed; he has heard this reaction as well.
  • There is a paradox inherent in the nature of lawyers. They crave certainty but prefer it expressed in words rather than in numbers (a point which comes up in my recent report about the risk management function of corporate counsel). The statistics-based evidence of an application’s accuracy may underpin a decision to use this type of software, but lawyers still prefer the evidence of their own eyes. In fact, the applications give every opportunity for output to be validated by humans, but (in a second paradox) this may be getting lost in the marketing literature’s emphasis on the science.

The second of these points, judicial acceptability, is adequately covered in my Judge Peck article. In this article, I will focus on the lawyers’ own confidence in these applications as an aid to lawyerly judgement, not a substitute for it. To do that, I will look at the descriptions of what these applications do rather than on the science behind them, supporting the relevant parts of the Applied Discovery and KPMG materials and by extracts from those of other products with similar functionality.

First, however, it is worth saying a few words about terminology, not so much to define the labels as to pick the generic purpose out from the proprietary or product-specific names given to this kind of functionality. They all work slightly differently, and I defeat my object of simplicity if I qualify my deliberately broad descriptions with any attempt to describe the distinguishing features of each of them. Read the rest of this entry »


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