The eDisclosure Information Project in 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.

Key blog posts

A number of factors influence my choice of the most important blog posts written during the year. The subject matter, the number of page views and my own subjective view all come into it; the latter includes the pleasure which I got from writing a particular post which may have no bearing at all on its significance.

US Magistrate Judge Andrew PeckThe outright winner on all grounds was one called Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat, a very full account of the speech which US Magistrate Judge Andrew Peck made at Carmel. Judge Peck has since published his own article, Search, Forward which covers the same ground with the extra authority which comes from the horse’s mouth. For those of us present at Carmel, there was a palpable sense that the world was turning that little bit faster as Judge Peck delivered his speech.

Next I would put King Ludd and the Lawyers – eDiscovery and the Luddite Fallacy which was my reaction to the New York Times article Armies of Expensive Lawyers, Replaced by Cheaper Software. I followed that up with Lawyers replaced by computers for eDiscovery search – a retrospective.

The most interesting article to write in narrative terms was Predictive Coding Wars: Recommind Contra Mundum, dealing even-handedly with the stir caused by Recommind’s announcement of a patent in respect of its technology. Many other articles followed on this suddenly fashionable topic; I rounded them up in a post called A Flock of articles on computer-assisted document review. The whole debate seems already to belong to a past era as we appear to be on the verge of general acceptance of the broad technology; whatever side one took in the war (and I, of course, took none) it played its part in moving the subject up the agenda.

I enjoyed writing The Relevance of a computer called “Watson” and a television game show to electronic disclosure, mainly because of the crossover which it offered between popular culture and electronic discovery / disclosure, and the resulting opportunity to talk about unstructured data and Probabilistic LSI in terms accessible to a layman. The inadequacy of keyword search came up in this article as it did in others which related to more sophisticated methods of search; I elaborated on this in an article called Keywords and Cooking: an eDiscovery Parallel, which emphasised, amongst other things, that eDiscovery is a specialist skill.

A completely different strand of writing involved the potential (some would say “probable” and others “certain”) fate of law firms as technology, rival business models and the clients themselves took large bites out of the work which had had historically underpinned law firm profitability. I said quite a lot about this, acknowledging as much in the title of a post called The Needle on the Broken Record – why UK Law Firms should go to US Legal Conferences. I wrote:

…[of] new “purpose-built” professional services models, and a further encroachment by the accounting, outsourcing and consulting firms.  The businesses competing for these distributed functions will include Ernst & Young and its peers, and the likes of FTI Consulting, Huron Legal and Integreon who will be happy to leave the pure law to the lawyers whilst gradually supplanting them for everything else.

My interest in this area extended to social media, not just as part of the eDiscovery / eDisclosure problem but as a way in which lawyers could remain part of the conversation. My article Blogging, Friending and Tweeting: what Lawyers should and should not do followed from a panel of that name in which I participated in New York, an invitation extended partly on the strength of an earlier article called Twitter, Bribery and 37 Corporate Counsel in a Big Virtual Bar. As its title implies, this embraced the then pending UK Bribery Act, a good example of a clearly-defined subject with eDiscovery implications around which a community of experts rapidly gathered, using Twitter both as a marketing medium and a means of exchanging views.

Marketing itself, and some of those who practice it in the legal IT business, came in for some stick both at the end of that article and elsewhere. A recent tweet from Charles Christian of the Orange Rag read

Sorry people but lighten up: if you only send me dull tweets bragging about how clever you are & plugging your products, I’m unfollowing you.

The general level of marketing materials and methods is rising, though too many still stick to what I once described as “snappy slogans and bullet points and all those rather trite rules which marketing theory lives by” (the full comment can be found here). Some marketing in this area is inspired and some is crashingly dull. Do not misunderstand me to be suggesting that Twitter, blogs and the like are essential components of a marketing strategy – there are several players who seem to do perfectly well without any of it – but spend a month or so quietly following others first, to see what works and what is merely strained lip-service to modernity.

The eDiscovery / eDisclosure conferences

This is another area where the standard has risen over the years. Most providers have now got the message that a conference presence requires more than a quasi-educational cloak over an adapted version of their marketing materials and, whilst we could always do with more, there is an increasing body of speakers who promote their expertise by being interesting and informative about the subject, leaving their company’s products and services to speak for themselves. Some of these events move the discussion perceptively forward, something I would not have said five years ago.

It is not merely invidious but almost impossible to say that any one conference was in some sense “better” than the rest. Instead, I will mention some new ones. I moderated a full day’s session for AccessData at a castle in Frankfurt, a perfectly matched mixture of setting, subject matter and audience, and the first of four events which I spoke at in Germany this year.

Kronberg Castle exterior

The International Conference on Electronic Litigation in Singapore drew judicial audiences from 35 countries; if the main events from my point of view were speeches by Lord Justice Jackson and Senior Master Whitaker, both of whom I can hear at home, the main message was of a jurisdiction in which government, judiciary and lawyers were united in a determination to be the best.

The new Carmel Valley eDiscovery Retreat hit the calendar with a bang in July. I would have gone to it just to hear Judge Peck’s ground-breaking speech (see above) but the other sessions were of the highest quality and the setting gave it a more relaxed quality, allowing more discussion than you get at the big city venues.

eDiscovery Ireland 2011 opened a whole new jurisdiction, not merely a new conference. It struck a good balance between informed speakers from its home jurisdiction and outsiders, and I very much hope it will be repeated next year.

Eddie Sheehy, CEO of NuixAll these, however, give way to the Nuix Exchange in Sydney as my event of the year. It had everything going for it in terms of location, of course, and the surrounding events were carefully chosen and brilliantly executed. The dominant memory, however, is of that kind of hard work in the sessions which genuinely advance the debate. It helps, of course, to have an audience invited for its ability to contribute to the discussion as users, in addition to those of us – Craig Ball, David Cowen, Senior Master Whitaker, Judge Peck and me – whose role was to help stimulate discussion along with CEO Eddie Sheehy (pictured left). Two things stick particularly in the mind – Craig Ball’s inspiring keynote address, and the observation by someone from a corporate legal department that “it would be good to be able to clone Judge Peck”. it was a privilege to be part of this event.

Craig Ball, Master Whitaker, Judge Peck at the Nuix Exchange

It is easy to identify the best venues – they are those which combined aesthetic quality with practicality, as relief from the bland vulgarity of modern conference facilities. The AccessData event at Castle Kronberg, one with ZyLAB in Middle Temple Hall, and a session in the Bibliothèque de l’Ordre des Avocats in the Cour d’Appel de Paris compete for top billing under this heading.

Which single session brought me the most pleasure? There is no contest here once objective value gives way to that personal test. ALM invited me to put on at LegalTech New York a version of the judicial play which we run each year at IQPC in London. US Magistrate Judges Andrew Peck and Elizabeth LaPorte, Senior Master Whitaker, HHJ Simon Brown QC and Craig Ball gamely agreed to send up themselves and the serious business in which they work in front of a large off-Broadway audience. We did a new version, with a slightly different US-UK cast, in London in May. If the downside of this business lies in the multiple major drafts which I must tackle over Christmas, the privilege of putting on this show, with such performers, is very much the upside.

Judicial Play at LegalTech

The holidays

They say that work isn’t really work if you enjoy it, and I am lucky enough to enjoy pretty well everything I do, even the bit which involves airports – see Supper in Singapore, Breakfast in Berlin, Luggage in Limbo for an account of some of the challenges of travel. This year my wife Mary Ann has been able to come with me for some of these trips – twice to New York, for a tour of Northern California following the Carmel Valley Retreat and to Australia and Singapore. I will publish some photographs in due course – here are some highlights:

Central Park, New York in February

Our hotel “room” at Gualala, Northern California in July

Dawn view from our hotel room in Sydney in October

What is coming in 2012?

I like each year to add to what has gone before. Inevitably, there are repeating patterns from year to year and the staple constituents are yet more reading, writing and attending conferences around the world in some capacity. One hopes, however, that each succeeding year will bring new challenges – of subject matter, of methods of delivery or of jurisdictions.

Subject matter points inevitably overlap with turn-of-the-year predictions – mine are here. There will be two shifts in the next twelve months which will influence what I talk and write about. Predictive coding will move from being seen as an esoteric black art to a mainstream activity. It will not supplant other methods of conducting eDiscovery, and nor should it, but it will take its place as one of several tools and techniques to be considered alongside the rest, for users increasingly able to recognise that the ability to estimate costs, and to stick to costs estimates, is a vital marketing tool for lawyers as well as the proper execution of their responsibilities as lawyers. As a second strand, companies and those who advise them will increasingly see that the primary answer to eDiscovery / eDisclosure expense lies in information governance, and that e-Disclosure is an end use of technology and processes developed within an organisation.

As to jurisdictions, I hope to go back to every country visited in 2011. If the opportunity to go to New Zealand arises, then I will jump at it, and not just for the travel experience – it has a new interest in electronic discovery and there are opportunities to learn from a country with no pre-conceived ideas as well as to have the privilege of passing on things which are evolving elsewhere. I failed to make it to Canada in 2011 and very much hope to remedy that in 2012 – much good thinking about proportionality and case management is evolving there and I would like to be part of it.

And I would like to do more in England and Wales. The London eDisclosure calendar is to gain at least one new addition as ILTA joins forces with ALM to bring a two-day event to London in May, including a litigation day for the first time. There is the possibility of a new event in the autumn which is at the early discussions stage at the moment. Just as important, however, are the UK regions which have been very slow to grasp both the threats and the opportunities which eDisclosure brings to second- and third-tier law firms in the big cities outside London. I would like to see and take part in a renewed attempt to encourage such firms to acquire eDisclosure skills before others, including their own clients, take it from under their noses.

Lastly, the method of delivering messages is as important as the messages themselves. I wrote recently about a transatlantic video panel in which I took part and which seemed to work. As I said in that article, I have work to do myself on tools and techniques to take advantage of this kind of technology.

It has taken me some time during this year to work out how Google Plus, and in particular its new business pages, can be used effectively. I have proved to myself that G+ provides a useful receptacle for publishing material. The next step is to turn that into a multi-way forum in which interested parties can share views and tap into the collegiate potential of this new media tool. I hope to do some work on this during January.

Conclusion

It remains only to thank the companies who sponsor what I do, particularly those who keep me informed and who invite me to take part in their own activities. I must thank, too, the growing number who read what I write, apparently tolerating the length of some of my articles and the deliberately discursive style – I say “deliberately” because I cannot imagine that any of you would put up with pure and undiluted talk about eDisclosure / eDiscovery for year after year. I am not sure that I could, either.

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