Wilmer Hale sets new standards for law firm eDiscovery web sites

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

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

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.

Huron Legal adds digital evidence services to its eDiscovery offerings

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

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.