Gartner’s Debra Logan and others at ZyLAB Universe 2011

December 31, 2011

If you cannot actually attend a conference, the next best thing is to read Project Counsel’s live tweets of the event and their subsequent reports. I was not able to attend ZyLAB Universe 2011 in Amsterdam on 24 November, but learned enough from the tweets to wish that I had been there. Project Counsel’s report is now out and is well worth reading for reasons which go well beyond even ZyLAB’s broad reach.

It does not diminish the importance of the other speakers to say that the presentation by Debra Logan of Gartner got the most attention. Her starting point was the five myths of eDisclosure, beginning with my favourite: that eDisclosure and litigation are “American problems”. This myth is patent nonsense if you do business with US companies or if your company is the parent, subsidiary or sister company of a US company. Even if you have no business connections with the US, you can no longer ignore the need to meet the demands of regulators, to face up to prosecutors like the UK’s Serious Fraud Office with its wide ranging remit under the UK Bribery Act, and to conduct internal investigations.

I will leave you to read Project Counsel’s report for yourself, not merely of Debra Logan’s speech but of what was said by ZyLAB’s Johannes Scholtes and others. Between the coverage of the speeches and the ancillary comment and illustrations you will get a good overview of what is coming in 2012 and beyond.

I should also, modestly, draw attention to the paper and webinar which I recently did with ZyLAB on the gap between business, legal and compliance, and IT departments within companies, a subject which recurred throughout the day.

I also note, with curiosity more than anything else, that Debra Logan is reported as referring to “eDisclosure“. In narrowly technical terms, this term refers to civil discovery under the Civil Procedure Rules of England and Wales. I prefer the universally accepted term eDiscovery except where referring specifically to the CPR. It is interesting to see Debra Logan apparently going the other way.

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Epiq Systems acquires De Novo Legal to expand its Managed Review Services

December 31, 2011

It is only eight months since Epiq Systems significantly increased its legal technology reach by the acquisition of Encore eDiscovery. It has ended the year by acquiring De Novo Legal LLC, whose particular strength is managed review services.

The acquisition significantly expands a review service which Epiq grew organically out of its software and services base in 2009. Like so many acquisitions, the commercial logic seems obvious once it has happened, with the two 2011 acquisitions significantly extending Epiq’s potential client base simultaneously with the ability to service it.

The press release is here. Despite its timing between Christmas and New Year, this transaction has attracted a lot of press attention – see, for example, the article headed EPIQ’s Acquisition Of De Novo Legal A Sign Of Things To Come by eDiscovery Journal’s Barry Murphy, which sees the acquisition as fulfilling eDiscovery Journal’s own predictions about market consolidation and about geographical, as well as functional, spread by fewer and stronger players.

I hope to find out more when the world starts moving again and will come back to this subject.

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You can find eDiscovery parallels everywhere if you look hard enough

December 29, 2011

What is the proper etiquette when someone else devotes half a blog post to writing about you? if they are simply polite, then a brief acknowledgment is all that is is required. It is easy if they are rude or argumentative – I can give as good as I get if that is the game. What, however, if you find yourself part of a pot-pourri which includes buttered parsnips and Norway’s butter shortage, his late Majesty King Richard III and his relatives, those fine English historians Sellar and Yeatman, topless barbers and a brief German lesson, with a couple of eDiscovery references thrown in? If I am occasionally discursive, a pre-Christmas blog post by my old friend Charles Holloway at Millnet makes one think of Chesterton’s poem The Rolling English Road and “the night we went to Birmingham by way of Beachy head”.

When I say “old friend”, a double ambiguity is intended – Charles is one of the few people in eDiscovery / eDisclosure who is older than I am. I am not here seeking to suggest that there is a link between age and the apparently random wandering from subject to subject in his post Faire Words Butter Noe Parsnips – Charles is a former litigation partner at a well-known firm of solicitors, and brings much needed legal gravitas (leavened, I should add, with much wit) to a market which risks missing its target through over-emphasis on the alleged magic of technology. The UK eDisclosure industry (and it is no different in the US and elsewhere) very much needs lawyers in it to act as a buffer between those who face the problems caused by technology and those offering the solutions. The Millnet blog, Smart eDiscovery, is a regular and much-needed part of that translating mechanism. A willingness to step outside a bare recital of technology and rules is very much part of the blog’s attraction.

A clubbable man, Charles does himself an injustice by claiming “an air of grumpiness”; he also threatens to trespass on a niche in that regard which Charles Christian of the Orange Rag and I have worked hard to claim as our own – the space for cantankerous cynicism about legal IT is already occupied. Besides, the parsnips post is expressly a pre-holiday, silly season post, not intended to carry the deep thoughts about eDisclosure which are the norm in a Millnet blog post.

Although I baulk at trying to connect them, it falls to me to explain some of the diverse threads in Charles’s piece; indeed, I have been challenged to do so by its author. There is not a lot of eDiscovery in what follows but, then, we have all had enough of that for one year, have we not? Besides, one can dig eDiscovery parallels out of almost anything if one tries hard enough. Read the rest of this entry »


The eDisclosure Information Project in 2011

December 22, 2011

Ever keen to be up with the trends, I seize on the alleged imminent death of e-mail as one excuse for not sending Christmas messages this year. Other excuses include the deficiencies of Outlook as a mailer (“there is a limit to the addressees per e-mail, but we can’t tell you what it is”), and the latest technology innovation, Apple’s iCloud, whose question about merging address data actually means “do you want to overwrite your large address book with the empty iCloud backup?”. No, I don’t understand it, either, nor do I understand why my remedial steps have given me every entry three times with no clue as to which is the truly replicable one. In any event, I can reach pretty well everyone I want to reach through my blog and Twitter.

What follows is a mixture – summary of what I have been doing, a reminder of some of the blog posts of 2011, the pick of the conferences, and a little about next year’s plans. If the effect is of an extended travelogue, then that reflects the world-wide interest in eDisclosure / eDiscovery which supports Gartner’s estimate, made in May, that the eDiscovery software market will grow and that non-US jurisdictions will account for an increasing percentage of that growth.

Some statistics

I wrote 216 blog posts in 2011 plus shorter ones on a new Google Plus page of which I will say more below. With a few days to go to the end of the year, I have had just over 68,000 page views, an average of 192 page views per day including weekends and holidays. The total number of blog posts is now 968 and they have between them attracted 228,680 views in what remains a niche market. I have over 1,000 Twitter followers and my tweet total stands at over 6,700 including many retweets of industry news created by others.

I spoke at seventeen public conferences in addition to private events, webinars and videos. I travelled nearly 90,000 miles, visiting the US (five times), Germany (four times), Singapore (twice), Hong Kong, Australia, Ireland and France, in addition to events in England. Read the rest of this entry »


Twitter and Technology-Assisted Document Review – the downside of uninformed prejudice

December 21, 2011

A report on the future of document review reaches me via Twitter. The spirit which ignores or condemns social media as a business tool matches the spirit which many lawyers show towards modern methods of document review. I yield to no-one in the strength of my prejudices on a wide range of subjects, but one must at least review one’s prejudices from time to time if the fate of one’s business turns on seeing round them.

I have to say that I had not come across the Enterprise Strategy Group (ESG) before Katey Wood joined it earlier this year from The 451 Group. The defect is mine, not theirs, since a glance at their website shows them to be a long-established and broadly-based IT analyst and business strategy company. I do not know if they had any eDiscovery focus before Katey joined them, but they certainly have now.

I was tipped off to the results of their latest survey by a tweet pointing to a blog post by Katey – which is really the first point I want to make here. I get most of my information from Twitter – I do not mean that the sum total of my knowledge is made up of 140 character tweets, but that Twitter points me to articles, brings me news and opens the door to discussions and to introductions to people I might not otherwise meet. Much of what I “know” is acquired by a fairly cursory glance at a day’s tweets, picking up the subjects and themes without necessarily following the links for the detail.

Many lawyers sneer at this – generally the sort of people who once predicted that e-mail would never catch on and who mocked the idea of a corporate website. Business is won by personal connections, they say, overlooking how few truly personal connections any of us can have, and overlooking also the potential for a connection made via social media to turn into a proper business relationship, or the reverse – for a brief meeting at a lunch or conference to turn into an established connection via social media.

Those same people will be conducting document review for eDisclosure/eDiscovery in the way they have always done it, treating rumours of advancing technology, outsourcing and other methods of doing the job more cheaply with much the same disdain as they treat Twitter. There are other overlays as well – of nervousness of the unknown and of protectionism of the splendid fees which have historically come from document review. Read the rest of this entry »


Trans-Atlantic video panel: The differences in approaches to eDiscovery in the US and in Europe

December 19, 2011

The American Bar Association’s Section of Science and Technology Law organised a lunchtime panel session in Washington last week. Its topic was the differences in approaches to eDiscovery in the US and in Europe and how those differences might affect eDiscovery in an environment spanning national borders, e.g. the cloud. Whilst it is not unknown for me to cross the Atlantic to take part in a single conference session, I attended this one by video link.

This method of bringing people together was much touted at the beginning of the recession. The time and cost of air travel and hotels, it was said, would be prohibitive, and we would find by the end of the recession that video provided a perfectly adequate substitute. This prediction overlooked two points: one was that the cost of travel fell like everything else as airlines and hotels struggled to fill their seats and beds; the other was that there really is no substitute for human interaction, whether one to one in a bar or one to many from a conference podium. This one worked very well, and I would happily do more of them, but I am only equipped to talk to a US audience because I spend a lot of time each year in the US, soaking up my subject by talking to the people who practice it, or welcoming them to the UK.

There were two US panellists, US Magistrate Judge John Facciola and Judge Herbert Dixon of the Superior Court of DC. Stephen Mason, General Editor of the LexisNexis book Digital Evidence and a well-known speaker and writer on electronic evidence in many jurisdictions, was the other UK speaker. Bennett Borden, Chair of the eDiscovery and Information Governance Section of Williams Mullen was the moderator.

The video facilities were provided by Squire Sanders in London. Squire Sanders lists 36 offices in 17 countries in North America, Europe, Asia, Australia and Latin America on its website, with 13 languages to choose from when reading it. My only connection with Squire Sanders hitherto is that my photograph appears alongside that of a Squire Sanders partner on the Equivio website, and I know Stephen Goldstein, its director of practice support, who is an eloquent and effective advocate of technology at eDiscovery conferences. Read the rest of this entry »


An eDisclosure evening at Lord’s with Clearwell

December 19, 2011

It is quite hard to find suitable and accessible venues for what is, essentially, a talking session. The location, and any side attractions, must be interesting enough to be part of the draw, but you do not want them to dominate the occasion to the exclusion of the message you wish to convey.

Lord's Writing RoomThe Writing Room at Lord’s Cricket Ground is perfect, and made a great setting for an evening at which Robert Lewis of Barclays, Senior Master Whitaker and I talked to an audience invited by Clearwell about eDisclosure developments from the perspectives of judge and client.

I opened with some context. The eDisclosure Practice Direction and Electronic Documents Questionnaire have been in the Rules for just over a year. A recent speech by Lord Justice Jackson drew attention to a pending new Rule 31.5 whose effect would be (amongst other things) to remove the default of standard disclosure and replace it with a “menu option” which would require the judge to consider what disclosure was actually necessary and proportionate for the case. In the same speech, Lord Justice Jackson had criticised the legal profession saying that “relatively few solicitors and even fewer barristers really understand how to undertake eDisclosure in an effective way.” This had been reported in an article headed Top Beak: ignorant lawyers fumble electronic evidence, which is as good a way to putting it as any other.

We had had two relevant cases. In Omni Laboratories Inc v Eden Energy Ltd a party used the pre-trial review, eight weeks before a ten day trial, to make a major specific disclosure application, incurring £47,000 in its own costs (I have written about it here). In Mortgage Agency Services Number Four Limited v Alomo solicitors, the defendant was punished in indemnity costs for running up unnecessary costs for its opponent and exceeding costs estimates. Although not narrowly an eDisclosure case, the principles of case management and of lawyer conduct were increasingly likely to arise in and eDisclosure context (my article about this case is here).

eDisclosure was increasingly seen as an end-use of information governance. Litigants, and in particular those who litigated often, would find the courts increasingly intolerant of excuses which depended on their own poor information management, particularly if the result was a waste of court time and an increase in the costs incurred by other parties. Symantec’s acquisition of our hosts, Clearwell, was symptomatic of this increasing focus on a continuum from document retention and management through to eDisclosure. Read the rest of this entry »


LDM Global launches processing and hosting managed services

December 16, 2011

LDM Global is offering legal discovery processing, hosting and support services in fixed-price blocks payable by monthly, quarterly or annual subscriptions. The press release is here.

The scheme allows access to LDM Global’s processing, storage, and backup, together with project management and technical support, available by web access to all cases from anywhere in the world. Having decided on the size of volume blocks and a payment period, the client can think in terms of overall case volumes rather than project by project costs.

Once a new case has been set up with licenses and permissions, any tasks thereafter can be done either by the client’s own team or by LDM Global’s support team. Different levels of support are available depending on the service level chosen, making this attractive both for skilled users and for those without their own resources.

LDM Global partners with Equivio, Relativity, AccessData and LexisNexis among others. The appropriate applications will be used at each stage to achieve the right result for the client.

This looks a good approach for firms and companies who can anticipate a certain level of demand without necessarily being able to predict how much will be required by any one case at any time. The context is the obvious concern about costs, where certainty is as important as the actual outlay. The level of predictability offered by such a service should enable law firms, in turn, to be more accurate in their cost predictions both to their clients and to opponents and the court in the new world of court-led costs management.

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Two predictive coding case studies emphasise time and cost savings

December 16, 2011

I referred a while back to two case studies about the use of the technology known variously as “predictive coding”, “computer-assisted coding” or, more recently, “technology assisted review” or TAR. One of them involved Epiq Systems and the other Millnet. One was a US example involving Baker & McKenzie and the other one came from Eversheds in the UK. I group them together because all four of these names, of service providers and law firms, are familiar ones in the UK. Most of the (by now extensive) literature on the subject of predictive coding involves organisation names which allow non-US lawyers to dismiss the subject as being of no relevance to them. The familiarity of the players in these two case studies may help to dispel this notion, even if one of the cases involves US regulatory proceedings.

The Baker & McKenzie / Epiq IQ Review / Equivio example

I start with an interview in Metropolitan Corporate Counsel with David Laing, a partner in the Washington, DC office of Baker & McKenzie LLP and called Predictive Coding = Great eDiscovery Cost and Time Savings.  The application used was Epiq Systems’ IQ Review which is a combination of Equivio’s Relevance software and Epiq’s own applications, pulled together by Epic’s consultancy services.

David Laing first describes how this technology works. He says:

It uses a limited number of senior attorneys familiar with a matter to review a representative statistical sample of the documents. The predictive coding software then applies the results of that statistical sample to the entire database. Predictive coding provides a way to prioritize documents for review.

His context is very large cases involving both high volumes and tight deadlines as well as an opponent, the Department of Justice, with the motive, the power and the means to be extremely fussy about what they are sent. The DOJ was, Laing says, “completely satisfied with the response and raised no questions about it”. Read the rest of this entry »


Who explains eDisclosure sources to the lawyers and the court?

December 16, 2011

An article by US lawyer and eDiscovery expert Jon Resnick of Applied Discovery has application in UK proceedings as well as in the US. Who on your side actually understands where the client’s data is and what is involved in collecting it?

I got an e-mail last night from Geoffrey Lambert in Melbourne whose opening line read simply “Stakhanovite!”. That, as many of you will know, is shorthand for “You have produced a lot today” and implicitly compared my published output (in fact the accumulation of several days’ dictation) with the work of Alexey Stakhanov who, on 19 September 1935, was reported as having mined 227 tonnes of coal in a single shift at the Ukraine city the which is now named after him. His accolades for this feat included the Order of Lenin and having his photograph on the cover of Time Magazine. Some said that the output may not have been entirely down to Stakhanov alone, but the feat was taken up by the USSR marketing machine as evidence of its citizens’ commitment to productivity.

I knew of Stakhanov, but looked him up anyway and then turned to the next item on my to-do list, a commentary on an article by Jon Resnick, Worldwide Vice President Field Operations and Marketing for Applied Discovery. Jon too is a man of prodigious output, with regular articles both on Applied Discovery’s blog and on the company’s Weekly Snapshot which, as I said in a recent article, is one of the more useful and comprehensive sources of regular eDiscovery information. An article by him also appeared on the Forbes web site recently. I have no idea if, as was said of Stakhanov, Jon has a team of willing helpers to do the research and proof-reading which is the writer’s equivalent of opening the seams and carrying away the coal – if so, perhaps he could lend me one, since the volume of material to write about at the moment far exceeds the time available to do it, and I don’t have a large marketing operation to run in addition, as Jon does. All in all, Jon Resnick (in the top photograph below) deserves the comparison with Alexey Stakhanov (the lower photograph) more than I do. Read the rest of this entry »


CY4OR signs partnership agreement with Guidance Software for EnCase Enterprise

December 14, 2011

UK-based forensics company CY4OR has reached an agreement with Guidance Software under which CY4OR will offer and support Guidance Software’s EnCase Enterprise Platform. This is a logical development for CY4OR, building on their nine-year history of forensic investigations and collections work which has already brought them into corporate electronic disclosure with a website dedicated to that part of their work.

A glance at the information page for EnCase Enterprise will quickly show why CY4OR has gone down this route. The passage about ….

a proven, cost effective method to investigate HR related matters (such as corporate policy violations, harassment complaints or computer misuse allegations), IP theft, fraud, computer security incidents and more

… ties in with and extends CY4OR’s established skills in this area of forensic investigation. The ability to collect data from servers and workstations on the corporate network without disruption to the business is important for both cost and time reasons – investigations of this kind almost invariably require urgent, if not instant, attention, but business must go on whilst it is happening.

Related as I am to both companies through their respective sponsorships of the eDisclosure Information Project, I look forward to hearing how the partnership goes and will report back when it has had a chance to bed down.

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2012 eDisclosure and eDiscovery Predictions

December 14, 2011

SCL, the website of the Society for Computers & Law, has kindly published my predictions for eDisclosure / eDiscovery for 2012. Every year, Editor Laurence Eastham collects predictions across a wide range of the subjects where technology meets the law, providing one of the few occasions where I am happy for an original article of mine to be first published somewhere other than on my own blog.

One year I will manage to provide them early enough for Laurence to include them in the print version of the SCL Magazine. That has been a consistent source of high-quality articles for many years, and I strongly recommend an SCL subscription to anyone with a professional interest in any aspect of legal IT – subscription information is on the SCL web site.

The current predictions are grouped together. Two of them, Discovery Divinations and Much More and Disputes and Developments, have a direct bearing on eDisclosure. The rest, between them, cover a wide range of subjects.

The same page gives links to the last two years’ predictions. It would be interesting to review them and see how accurate or otherwise we all were.

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Shortened version of Epiq white paper published by New Law Journal

December 14, 2011

A recent post of mine, called Epiq Systems White Paper: from start to finish – what actually happens to my clients data? referred to a white paper which I wrote with Deborah Blaxell of Epiq. The paper has now been published in a shortened form by the New Law Journal with the title Information Highway.

Its theme is one I have been promoting this year and will continue to promote next year – that the lawyers, whether in-house or external, who want or need to commission the services of a services provider, can have little understanding by default of what stages and processes, both human and technical, take place once instructions have been given. We need to make sure that we fill this gap if people are to be encouraged to take that first step.

The article was first published in the New Law Journal “Information Highway”, NLJ 9 December 2011, p 1703.

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Big 4 a reason – a GC’s Eye View of professional service client relationships

December 14, 2011

Tom Kilroy is General Counsel at a publicly quoted company, leading a team of around 35 people. His blog, GC’s Eye View, is sub-titled Thoughts on law and business from a General Counsel at a publicly traded company. Those who offer professional services to such companies, and who want to know what they look like from the other side of the desk, would find it illuminating to read Tom’s occasional thoughts on his blog and to follow him on Twitter.

The title of his latest post is Big 4 a reason, and you do not need great powers of deduction to guess from this that the article has positive things to say about PwC, Deloitte, Ernst & Young and KPMG. It is not that Tom is particularly critical of law firms, but they suffer by the comparison with the Big 4 in the way that they relate to their clients.

The Big 4, Tom says, are “thoughtful about what is really important to their clients” and “think very carefully about how to engage with and develop their current and future clients.” The overall impression, it seems, is of a common interest in client and professional adviser working together which (one deduces) is not evident in dealings with law firms as a class.

One sentence in particular caught my eye in relation to my own area of interest. Tom Kilroy says “I saw a Big 4 pitch which laid out what the firm could do for us, but only on the condition that we achieved certain things for ourselves”. There is no real argument in the eDiscovery / eDisclosure world that the solution to the pain, cost and disruption of eDiscovery demands is information governance and, in particular, the development of policies and processes which ensure that a company keeps (and can find) the documents which it ought to keep and disposes of those which it does not need. Read the rest of this entry »


Pedigree suggests that Hobs Legal Docs will keep on growing in eDisclosure

December 13, 2011

I have been trying to work out when I first heard of Hobs Legal Docs or came across its managing director, Terry Harrison. I have been in the UK litigation support business since 1993, and can generally recall the context in which its players came to my attention. Hobs and Terry seem to have been there for ever, yet I cannot remember that first introduction. I do not recall, either, that Hobs ever made big splashes at conferences, placed glossy advertisements, or churned out press releases saying how well they were doing. They always seemed too busy with real work to have time for things like that.

Hobs Legal Docs was in fact set up in November 2004 with Terry at its head. It is a separate entity within Hobs Reprographics plc, the largest independent reprographics group in Europe, and was established as a logical extension of Hobs Reprographics’ printing and copying, document management, and scanning and archiving services, with a particular strength in the construction industry. Hobs Reprographics was set up in 1969 in Liverpool by Kieran O’Brien, who joined forces with an Irish reprographics company called J D Hackett to provided drawing and printing services, originally to Liverpool companies but now with 18 branches around the UK. The name Hobs represents the initial letters of Hackett and O’Brien, Liverpool remains the headquarters, and Kieran O’Brien is still very much in charge, as I discovered when I had lunch with him recently.

A company’s history, however successful it may be, is not always relevant to its future development, especially in a market which changes as quickly as does the electronic disclosure business. The key to Hobs’ success, I think, lies in a quotation which Kieran O’Brien gave to the Liverpool Echo in 2006. Talking of Hobs’ organic and self-funded growth, Kieran said:

“We put around 10% of turnover back into the business each year to keep pace with new technology. I have always firmly believed a successful business can stand on its own two feet without recourse to venture capitalists or handouts and that is what we continue to do.” Read the rest of this entry »


Prosecution lawyers don’t want to take the CPS tablets

December 12, 2011

An article of last week on my Google+ site (Norwich CPS tests tablet computers as a step towards paperless courts) sounded a cautious welcome for the plan by the Crown Prosecution Service to send out all the documents for criminal cases on HP tablets. I referred also to a similar exercise being undertaken by Australian firm Corrs which, I implied without actually saying so, has probably had rather more experience at managing documents electronically, as well as a more controlled environment consisting only of their own lawyers. I do not know who, if anybody, is helping the CPS on its initiative, but I anticipated difficulties even if the technology was adequately specified and properly managed case-by-case.

It has not taken long for the intended recipients of this technology bounty to react against the proposal, as the Law Society Gazette reports in an article called Firms in revolt over CPS “paperless” plan. In addition to difficulties arising from the technology itself and from the context in which it is to be used, solicitors complain that the change “will simply transfer costs from the CPS to the defence”. A letter from 30 criminal firms to the Director of Public Prosecutions says “We are happy to assist in changes which generate efficiencies, but see no reason why the costs should be borne by us, while we enjoy no corresponding reward”.

It has to be said that the civil service has a fairly unimpressive record for delivering technology to itself, never mind to those with whom it deals. Lack of technology nous is compounded, usually, by that blissful ignorance of commercial pressures which is characteristic of public servants everywhere. They are not good, either, at the human aspects of change, relying on their monopoly status as the only source of publicly-funded work to hand down by diktat changes which deserve a more consensual approach. As a rough and ready rule, when a civil service project is given a painfully clunky name, in this case Transforming Through Technology (T3), it can generally be considered dead before it hits the ground.

I suspect also that this one needs a longer trial than has been allowed.

The proposal is a good one in theory, and one which, inevitably, I support. Change management, however, requires more than merely making an announcement and adopting new methods for what is, as one of the interviewed lawyers said,”a system that we don’t even know will work”.

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You do want to know what eDiscovery / eDisclosure is costing you, surely?

December 9, 2011

You will doubtless recall from your Latin lessons at school that the Romans drew a useful distinction between questions which expect the answer “Yes” and those to which the presumed reply is “No”, the former generally beginning with “Nonne” and the latter with “Num”. The questions “Are you going to give her a call?” and “Surely you are not going to hack her phone?” are subtly different in tone.

The question which comprises my heading clearly expects the answer “Yes”, whether put to a company or to a law firm – general counsel in companies are thought to be seriously concerned about eDiscovery costs, and law firm partners must want to know that they are offering their clients a service which is competitive as well as effective. This turns out to be a different kind of question – the one nobody asks.

The subject comes up now largely thanks to articles by Katey Wood of Enterprise Strategy Group whose Information Asymmetry blog index is here. Three articles – one called eDiscovery and the law firm: great expectations, poor accountability, and two which include the words Is eDiscovery Ignorance Bliss? show for themselves what Katey’s theme is. Where I am a mere commentator, Katey is an analyst, and her assertions about the lack of curiosity shown by both general counsel and external lawyers are underpinned by survey results.

Her blog posts are based on a more formal survey whose results are available only to ESG subscribers; it is called eDiscovery Market Trends: a View from the Legal Department. Dean Gonsowski of Clearwell (now part of Symantec) provides us with a useful summary of the survey in an article whose title, ESG’s Legal Trends Survey Reveals Alarming Inattention to eDiscovery Spending says it all. How can you measure the value which your external lawyers are bringing you if you have no idea what the cost is? Read the rest of this entry »


Wilmer Hale sets new standards for law firm eDiscovery web sites

December 7, 2011

Take a look at Wilmer Hale’s eDiscovery Solutions website. When I first saw it I put up a tweet to the effect that any litigation law firm not doing something like this would be dead within two years.

The website sets out succinctly (in five bullet points) what methodology Wilmer Hale uses on behalf of its clients and what the benefits are. More importantly – very much more importantly in some ways – it sets out the pricing for different types of case and situation. It includes a case study involving the use of Recommind’s Axcelerate which describes what was done and what was saved in terms of the defensible reduction of reviewable documents. Lastly, it introduces readers to the (very large) team who comprise and lead eDiscovery exercises.

There are a handful of other firms who can compete with Wilmer Hale for their commitment to a properly structured, properly equipped and properly staffed team. None of them, however good, matches the clarity with which Wilmer Hale describes what it does for its clients. Other firms may care to put themselves in the position of clients who, increasingly, are able to take much of this work in-house and / or outsource it to providers and document review companies without troubling the lawyers too much. The only possible law firm reaction to this is to deprive clients of the incentive by offering a set of services in the way that Wilmer Hale has done.

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UK relevance in a Practitioner Guide to eDiscovery from the New York State Bar Association

December 7, 2011

My thanks to Matthew Davis at Hogan Lovells for drawing my attention to a straightforward guide to eDiscovery which has been published by the New York State Bar Association. It inevitably has a US focus, but it is full of practical suggestions which transcend jurisdictional rules.

I took to it before I had even finished the introduction, with the passage beginning “lawyers should… never assume, inter-alia” that the clients’ IT people will understand either their ESI obligations or what the lawyers say about eDiscovery, or that judge will appreciate the difficulties. More important, perhaps, is the preamble to that section with its reminder that “there is no exemption from legal duties based on the electronic source of the relevant information”.

This ties in neatly with Lord Justice Jackson’s recent observation that “relatively few solicitors and even fewer barristers really understand how to undertake eDisclosure in an effective way”.

UK lawyers should not ignore the passages on US preservation and legal hold even though our respective rules are so very different. We may not have to jump the extravagant hurdles (as we see them) which the Federal Rules of Civil Procedure impose on parties to litigation, but many of the practical steps recommended in the Guide are equally relevant in England and Wales. The guide advises, for example, that when a decision is made “the supporting rationale for the decision should be documented in writing in a manner that preserves applicable legal privileges”. That applies to UK decisions about the scope of a reasonable search as much as it does to US decisions about implementing a legal hold.

The UK eDisclosure Practice Direction 31B includes, in paragraph 7, a reminder to solicitors to notify their clients of the need to preserve potentially disclosable documents. The suggestion in Guideline No 3 of the NYSBA Guide apply anywhere, not just in the more rigourous US context. The principles of cooperation are broadly the same whether for a US “meet and confer” or for the discussions required by the eDisclosure Practice Direction.

Perhaps most valuable is the glossary starting on page 30 and alphabetically arranged. Most of the terms defined in simple terms there have the same meaning in the UK.

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Dominic Regan on Jackson and costs at the Epiq Showcase

December 7, 2011

I wrote a post in anticipation of Epiq Systems London Showcase on 8 November, focusing mainly on the scope and depth of the consultancy services and software options which are available to lawyers and their clients from broadly-based providers like Epiq.

All that and more was on display at the well-attended evening in the Barbican, and anyone who wanted to find out more about Epiq’s own DocuMatrix, Clearwell, kCura and Nuix, to say nothing of Epiq’s document review services, had ample opportunity to do so.

The highlight of the evening, however, was a talk by Professor Dominic Regan who, as an adviser to Lord Justice Jackson and official observer of the Birmingham costs management pilot, is better placed than almost anyone to tell us what is happening in the wider UK litigation world and what we can expect.

Epiq’s International Managing Director Greg Wildisen opened the formal part of the evening with a brief survey of wider developments and the expanded software and service offerings which Epiq can give following its acquisition last April of Encore eDiscovery Solutions. That done, he turned the podium over to Dominic Regan.

Dominic began by expressing his conviction that most of Lord Justice Jackson’s proposals will happen. At the time of writing (and this comes from me, not Dominic, and only emerged this week), it seems possible that they will be deferred, largely thanks to the inter-relationship between some of them and the proposed legal aid reforms which were themselves not part of Lord Justice Jackson’s recommendations (an important point this, since many people, including the Law Society, have conflated the two things, either through ignorance or because it suits their agenda). Dominic emphasised that Lord Justice Jackson was particularly and expressly against the removal of legal aid from healthcare litigation. The delay is not likely to be a long one and, as Dominic observed, the progress through Parliament is well advanced. Read the rest of this entry »


Huron Legal adds digital evidence services to its eDiscovery offerings

December 7, 2011

Huron Legal is primarily a consulting company working with law firms and corporate legal departments to bring both strategic advice and appropriate resources to their businesses, including eDiscovery problems. That includes pre-emptive advice in anticipation of prospective eDiscovery demands, and the expertise and infrastructure to manage electronic evidence when the need arises.

Huron Legal has now supplemented that with a digital evidence service which will deal with the identification, preservation, and collection of electronic evidence, in addition to the processing and export into an appropriate review application which has always been part of the service.

Huron Legal also offers a document review service in the US and London. As its information page shows, key components of this service include a capped-cost model and accountability through a “Document Review Scorecard” whose metrics cover cost, staffing, resource allocation and efficiency and overall project quality.

How many law firms can offer that kind of information to their clients whilst also dealing with the data collection? At one level, that makes Huron a competitor for law firms; at another, it makes them an ally who allows lawyers to offer services to their own clients which they cannot sensibly offer (read “offer cost-effectively” or perhaps “offer at all”) on their own.

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CY4OR highlights IT security risk posed by employees

December 7, 2011

Forensics and eDiscovery company CY4OR has a timely article on its blog reminding us that a company’s employees are often the weak spot in its security systems. The article, Employees are the largest risk to an organisation’s IT security, refers to recent reports by PwC and Verizon and to the government’s Cyber Security Strategy.

Recent press articles have given the impression that the focus of this strategy is protection for the Olympic Games from both fraud and terrorism. That makes a good headline, but the Cyber Security Strategy has deeper purposes than the protection of a single event, not least because civil servants seem more adept than others at mislaying data.

As with electronic discovery and other data-related matters, the services available from companies like CY4OR include both reactive and, more usefully, proactive advice. The reactive side includes, for example, the prompt examination of a laptop went which went missing briefly from a financial institution, a loss which would have triggered major notification and reporting implications if CY4OR had not been able to confirm very quickly that the laptop had not been used whilst AWOL – I wrote about that here. Such one-off exercises come in addition to the more usual eDisclosure reactions where potentially disclosable data must be collected from a range of sources and devices; CY4OR does this as well through its partnerships with Clearwell and Nuix – see their eDisclosure site here. Read the rest of this entry »


Indemnity costs awarded where unnecessary costs were incurred

December 5, 2011

Have a look at the judgment of HHJ Simon Brown QC in Mortgage Agency Services Number Four Limited v Alomo Solicitors.

A few lines chosen from the end of the judgment (from paragraph 30) should give you enough the flavour of it. It is not specifically an eDisclosure judgment, but it serves as a warning to any party and its lawyers who run up unnecessary costs falling on their opponents. The remedy at the court’s hands is an indemnity costs order.

HHJ Judge Alton in Jefferson v. National Freight Carriers Ltd [2001] 12 Costs 313, 321-322…..explains the vital importance of project managing and budgeting cases from the outset based on the issues raised between the parties in the statements of case: and how it should be approached.

“In modern litigation, with the emphasis on proportionality, there is a requirement for parties to make an assessment at the outset of the likely value of the claim and its importance and complexity, and then to plan in advance the necessary work, the appropriate level of person to carry out the work, the overall time which would be necessary and appropriate [to] spend on the various stages in bringing the action to trial and the likely overall cost. While it was not unusual for costs to exceed the amount in issue, it was, in the context of modest litigation such as the present case, one reason for seeking to curb the amount of work done, and the cost by reference to the need for proportionality”.

The instant case is one where the Defences were, frankly, lamentable: prolix, obscure and irrelevant with the consequences of substantial unnecessary disproportionate costs being spent by both parties. I am told that at least 11 large conveyancing files and other material were the subject of paper disposure based on the issues raised by the Defence and the witness statements becoming very lengthy. The responsibility for that squarely lies with the Defendants, the pleader and those who signed the statement of truth.

In those circumstances I am satisfied that this is a case where the conduct of the Defence is one which requires an order to indicate the Court’s displeasure: indemnity costs. Furthermore, I am satisfied that it is only fair on the Claimants that that should be the case, putting the burden of proof on a detailed assessment on the Defendants to show, if they dare to do so, that the Claimants costs – apparently disproportionately high and in excess of approved budget as they are – are ‘unreasonable’, rather than vice versa i.e. having to prove that their own costs are ‘reasonable’.

You might like to look also at Vector Investments v Williams, where a successful party, otherwise entitled to its costs, was hit with a £20,000 costs order for the manner in which it gave disclosure and the expense caused to the other party as a result.

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The Tyranny of the Outlier in shaping eDiscovery disputes – a US article with UK messages

December 5, 2011

An article about US eDiscovery has messages for UK eDisclosure. The Electronic Documents Questionnaire should be used to reduce unnecessary costs both of the disclosure itself and any disputes about it.

I don’t know what US forensic expert Craig Ball did on his holidays (well I do to some extent, because I was with him in Sydney for part of them), but he has come back in cracking form with a stream of really good articles. One of the recent ones is actually called When Preservation Requests are Wielded as Weapons but it will become known (because it will be referred to often) as the Tyranny of the Outlier. The suggestions which Craig makes apply even in the relatively sanctions-free environment of UK courts because, if followed, they will save clients money.

An outlier is an example which “appears to deviate markedly from other members of the sample in which it occurs”. Craig refers to “outlier opinions” which, in any eDiscovery context, are taken as imposing new or wider preservation obligations which parties follow thereafter regardless of the facts of the case in which they were given. Litigants who make wide preservation demands are not necessarily making tactical moves, but fear that they are failing in their duty if they do not demand “everything”; those facing the demands feel compelled to react with over-wide preservation.

Steps are taken in an attempt to be “unassailable” when what is required is merely that they are defensible. Instead of bowing to opponents’ demands, the proper response is cooperation, with parties “communicating relevant, reliable and specific information about systems, sources and forms to enable the other side to make responsible preservation demands… even if they won’t do so”, conveying quickly what is expected and thus “affording an opponent an opportunity to take the issue to the court”.

I have quoted enough, I hope, to send you to read the article for yourself. The passages given above should make it clear that this advice holds good in jurisdictions which do not have the fear of sanctions which drives so much of the cost of US litigation – an outcome which, as Craig Ball makes clear, is something which is statistically less likely than being struck by lightning, even in the US. Read the rest of this entry »


You say eDisclosure, I say…..whatever is right for the context

December 2, 2011

The SCL website is again collecting predictions for the coming year. There is always a good crop relating to eDisclosure / eDiscovery – mine usually arrive just after the print edition has gone to press, and I suspect that will happen again this year.

The first round of contributions relating to eDiscovery / eDisclosure (you will see in the moment why I am emphasising these two labels), from Mike Taylor of i-Lit, Andrew Haslam of Allvision, and Charles Holloway of Millnet. You can read them for yourself, so I will not recite them here. The one which catches my eye, however, is number 6 on Mike Taylor’s list. It reads:

Despite the UK not having a ‘discovery’ process any more many well-known commentators will continue to insist on referring to UK e-disclosure as e-discovery, fuelling the perception that what we do in the UK is identical to that which is done in the US. It is not.

Hmm. The only two commentators who refer to “eDiscovery” as a matter of choice rather than ignorance are me and Jonathan Maas of Ernst & Young (the link, you will note, is to E&Y’s eDisclosure page), and we are both careful to distinguish between references to the Civil Procedure Rules and discussion about the process. I refer to this quite often, most recently in the opening paragraphs of this article which I will not repeat here.

Let’s dismember Mike’s short sentence bit by bit, starting with “many well-known commentators”, and perhaps substituting “commentators of whom you may have heard”, since “well-known” rather over-states it if applied to any of us in this small patch. I wish there were “many” of us – we need much more discussion and, most of all, more anecdotal evidence of what actually happens in correspondence and in case management conferences around the country. One of the many positive things about US eDiscovery is the breadth and depth of the informed discussion about it which goes on. Read the rest of this entry »


Proof Finder: 1,000 Nuix licenses at $100 for charity – you learn eDiscovery while others learn to read

December 1, 2011

EDiscovery software provider Nuix has come up with an imaginative plan which simultaneously provides lawyers and others with hands-on opportunities to develop technical eDiscovery skills and helps increase literacy skills to children in developing countries.

Like so many imaginative plans, it is easily understood: you pay $100 for Proof Finder, which gives you the same processing, search and analysis capabilities as other Nuix eDiscovery solutions with a 10 Gb data limit. Nuix will give the entire proceeds to a charity called Room to Read, which works in developing countries to increase literacy skills among primary school children, and support girls to complete secondary school.

1,000 such licences are to be made available over a 10 week period and the licence itself lasts for 12 months. Proof Finder is available at www.prooffinder.com.

There is an obvious connection here – though I do not think that it is what drove Nuix’s choice of charity. Literacy is a basic skill which people need to make progress in life. You cannot move beyond the basics without getting your hands on books. Lawyers, in-house information managers and those with responsibility for law enforcement and investigations can develop their skills in a practical way if they can actually use software designed for the purpose. It is rarely possible to gain such experience without significant investment in software licenses.

The scheme is explained in this press release. You get hold of the software in the same way as you acquire many more everyday applications by making an online payment, downloading a file and entering a licence number given at the time of payment. Working with a fully expanded dataset of up to 10 Gb, you can catalogue and search files and e-mails, look for particular types of file or content, and undertake an early case assessment through a user-friendly interface.

Nuix is giving live training webinars starting on 7 December, and online support is available in a variety of forms, including peer-to-peer help as well as user documentation, FAQs and training videos. The idea is not simply passive learning – you can use this on live cases immediately, getting your hands dirty on real data and finding out what this kind of software can do.

One of my recurring themes this year is that lawyers have difficulty in understanding what actually happens when eDiscovery applications are brought to bear on their clients’ documents and data.  Craig Ball, who is a lawyer as well as a skilled forensic investigator, often reminds us of the days when a client would bring in a file and you could dive straight into it and start giving initial advice. This  initiative gives lawyers the opportunity to see the transition from the source electronic documents to a reviewable body of data with the same immediacy.

The cause, Room to Read, is obviously a good one, and worth a $100 donation anyway. To help children to read whilst giving yourself a new set of skills is not something to be missed.

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UK accountancy firm BDO LLP selects Digital Reef for its eDiscovery work

December 1, 2011

The London member of business and advisory firm BDO International has taken Digital Reef to support its eDiscovery work. The selection was made through Digital Reef’s UK partner e-Origin.

William Wilkinson, Head of Technology Forensics Services at BDO, said “by processing our eDiscovery work through Digital Reef, we will be able to deal with larger volumes of information in a timelier manner than ever before.”

Digital Reef’s fast processing and analytic capability, with its focus on early case assessment, was not the only reason for the choice. Connectivity with kCura’s Relativity review platform was also significant..

There is further information about this deal here.

BDO is not a firm with which I have had any connection recently. I will leave it a while for the new system to bed in, and then try and get an invitation to find out more about them and their e-Discovery practice.

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The FBI buys Clearwell eDiscovery Platform

December 1, 2011

The Federal Bureau of Investigation (FBI) has chosen Symantec’s Clearwell eDiscovery Platform for its eDiscovery investigations. There is a press release about the deal here.

Criminal investigators have much the same requirements as those in the civil fields – and the same costs pressures. They need to search and analyse large volumes of data, to review and tag them, and to make them available to others.

Government bodies are increasingly arming themselves with the ability to get ahead of those whom they investigate. Companies which have not yet got around to information governance and who possess large volumes of data which they do not control properly are frequently surprised to discover that prosecutors and regulators are equipped to find information which the company did not know it had – something it might regret when the investigator finds it first.

The FBI has now put itself in a position to do just that with people and companies who fall under its eye.

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Huron Legal’s Nigel Murray to take part in CEO Fast for Famine

December 1, 2011

LexisNexis Australia has been rounding up CEOs to take part in CEO Fast for Famine, an initiative led by UNICEF to raise money for its emergency relief program. The countries chiefly affected are Somalia, Ethiopia, Kenya and Djibouti.

LexisNexis asked me to draw attention to their recruitment drive, which I would have done anyway. Shortly after I heard about it, I saw Nigel Murray, managing director of Huron Legal in London and discovered that he was amongst those recruited for the fast. As regular readers will know, Nigel makes an annual appearance in these pages for his sterling work raising money for Help for Heroes by cycling across northern France. This is a rather different opportunity for him to tackle his waistline in a good cause.

LexisNexis has a press release about this from which you will see that the participants have agreed to fast from midnight on Monday 12th December to midnight on Tuesday 13th December. There is also a registration page at which you can donate or, indeed, register to take part in the fast.

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