FTI webinar: financial, transactional and operational databases in e-disclosure

FTI Consulting are presenting a webinar on structured data on Thursday 19 November at 1300 GMT. The subject is perceived by some as too difficult to talk about, but it cannot be ignored.

Elephants have provided a recurring theme throughout this blog. They are large, hard to get your arms around and difficult to describe to someone who is not familiar with them – which makes them the perfect model for the structured databases in which a very high proportion of company information resides.

E-mail, and user files like Word documents and Excel spreadsheets spring readily to the mind of a lawyer required to disclose “documents”. Sources such as HR and financial databases tend to be overlooked, largely because they usually bear little relationship to the conventional idea of a “document”.

Legal Inc publishes e-disclosure podcast series

Litigation services provider Legal Inc has published the first two in a series of ten podcasts about electronic disclosure. They take the form of a dialogue between Legal Inc director Lisa Burton and me, and will between them provide a comprehensive overview of the rules, the practice direction to Part 31 CPR, and cases such as Digicel and Abela. We also discuss practical things such as preparation for case management conferences, the use of external suppliers, best practices, problem areas, global trends and pending developments.

FTI webinar – Controlling E-Discovery Costs

FTI Technology are presenting a web seminar on November 5 (that’s today) at 2pm Eastern | 11.00am Pacific | 19.00 GMT. Called Advice from Counsel: In-House Pros on E-Discovery Costs Containment, it is presented by Ari Kaplan, who will present the results of a survey of in-house counsel and senior IT people.

Although the survey was of US companies only, the results are universal – this is not about FRCP or sanctions but about the expectation that in-house legal teams will achieve the same or more with lower budgets and fewer resources, including the spend on outside lawyers. This is happening everywhere and the conclusions are as valid in countries beyond the US. We have gone way beyond shaving down charging rates and other minor economies, and into fundamental reassessments of what is really necessary to achieve the objective.

The answers inevitably lie in a mixture of process, people and technology. The perfect model, viewed in the abstract, is that companies reserve their external lawyers for the things which they do supremely well, and keep control of as much as possible of the rest by a mixture of in-house teams and technology and by direct relationships with providers of software and services.

The primary target is to cut the cost of review by minimising the amount of data sent to the lawyers – there is much more money to be saved by reducing the lawyer hours than by trimming the charging rates. The newer generations of clustering and visualisation tools are not merely more easily understood and accurate, but deliver results which can be audited and, if necessary, re-run with different parameters. The word “repeatable” means more than being able to validate the results – if the first-pass processes are routinely done in-house, then conclusions reached last time can be re-used when similar ground has to be covered for a different case.

I have written a fair amount about this shift – lawyers must either embrace it and learn to fit into the clients’ processes, or do without the work. It will be good to have some statistical backing for what is known to be happening, and Ari Kaplan’s overview and analysis will, like the results themselves, be relevant beyond the US.

Registration is here.

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LexisNexis eDiscovery conference in Singapore

As you might infer from its name, the e-Disclosure Information Project set out with purely national ambitions. England and Wales is the only jurisdiction in the world to give the name e-Disclosure to the process of identifying, preserving, collecting and exchanging documents for litigation. If I had known that two years later I would be speaking in Brussels, Washington and Singapore within three weeks of each other, I would not have picked a name with so narrow a jurisdictional scope.

The wider I cast my net, the more it becomes clear that the jurisdictions which require discovery of documents (principally England and Wales, the US, Canada, Australia, Hong Kong and Singapore) have more similarities than differences in their approaches to the problems and the solutions raised by electronic documents. At one level this is obvious – all of these jurisdictions give pre-eminence to contemporaneous documents as the primary source of evidence, they have all seen a vast growth in volumes of evidence, and there are a limited number of ways in which court rules and procedures could develop to take account of mass documentation in adversarial proceedings in which justice is only accessible if it can be afforded. If you were to describe the problem to someone who, although suitably skilled and intelligent, had no knowledge of the developed law and procedures, you would end up with a solution whose essentials were broadly similar to those which obtain in the jurisdictions which I have named.

Where does a wise man hide a leaf?

What connects Father Brown’s deduction that a trusted old soldier had been a villain with Autonomy’s tracing of Jérôme Kerviel’s activities at Société Générale? Both stories involved not just hiding leaves in forests but making a forest in which to hide the leaves. Companies need to get a grip on their data.

The Times has been running a rather good series of supplements on matters relevant to business. Last week’s was on Corporate Fraud, and I and other e-Disclosure commentators were interviewed for an article called Finding a hidden leaf in a forest.

The heading is a misquotation. What I actually said in my interview was “Where does a wise man hide a leaf?”. This expression was used by Lord Justice Jacob in Nichia v Argos in his discussion about mass disclosure as opposed to the consideration of documents “with some care to decide whether they should be disclosed”. His paragraph 47 says this:

“…it is the downstream costs caused by the disclosure which so often are so substantial and so pointless. It can even be said, in cases of massive disclosure, that there is a real risk that the really important documents will get overlooked. Where does a wise man hide a leaf?”

London litigation support all gathers in one pub

A large pub gathering of most of the London litigation support industry prompts some thoughts on the state of the industry and on what makes a buyer new to the market choose one supplier rather than another

If the Larder in Clerkenwell had collapsed last night, almost the whole of the UK litigation support industry would have gone with it. Bill Onwusah of Lovells, whose idea it was, thought he was being optimistic in reckoning that 25 people might turn up in response to his invitation for “an evening of convivial conversation”. As the evening began, he revised the estimate to 45. We all lost count, but the final figure was much higher than that. What probably drew in the crowds was the rider “if you can’t manage anything convivial we will settle for an evening of the usual backbiting and sniping”.

The British invade Washington again, this time to talk and learn, not burn

To say that electronic discovery is international connotes more than the cross-border ramifications of multi-jurisdictional litigation. There is commonality in the problems, the rules and the solutions, to say nothing of the implications for law firms of new ways of working. The Masters Conference was an opportunity to explore many of them.

My ambition to report on the Masters Conference in Washington before reaching the LexisNexis e-discovery conference in Singapore was defeated by various things – only so many hours in the day for one thing, and no power sockets on the planes. As I begin writing this, it is 4.00am in Singapore a week later and the conference here has been and gone.

Big reception for Marean-Dale video

Browning Marean and I made two short videos at ILTA09 with Kina Kim of PivotalDiscovery. The “big reception” in my title refers to the venue rather than the reaction, but this means of conveying information is well worth doing.

Years ago, back in the late 1980s, I attended a video presentation course with my then law firm partners. The idea was not to prepare us to appear in moving pictures but to improve our general presentation skills by showing us where we went wrong when speaking in public. My own weakness, I discovered, lay not in how I looked when being filmed, but in what I did when I was merely in the background. I realised that I fiddled constantly, scratching imaginary itches, rubbing the side of my nose and generally moving about all the time. When I first stood in front of audiences, I had to remember to remove everything from my pockets to make sure that I did not jangle keys and coins whilst speaking.

I have kicked that last one, I think, but my most recent video appearance shows up a new bad habit – continuous hand gestures like a demented weather girl signing for the deaf whilst warning of stormy weather ahead.

Discovery explorers need a map

You can kill an analogy with overuse, just as every cliché was once a clever new phrase. Describing e-discovery / e-Disclosure in terms of explorers and maps, however, does not become hackneyed, because exploration itself continues to excite and because it works very well as a parallel.

Each nation has its own stirring examples, and they come from all over the place. What do I get if I take the first ones which come to mind? Mallory and Tenzing climbing Everest in the year I was born. Howard Carter and Lord Carnarvon in Tutankhamen’s tomb. Sir Walter Raleigh in Virginia and South America. Scott, Shackleton and the others in the snowy wastes of Antarctica (I have a soft spot for Sir Vivian Fuchs, leader of the first overland crossing of Antarctica in 1958, if only for the newspaper headline “Vivian Fuchs off to Antarctica”). Doctor Livingstone greeted by HM Stanley in an African clearing. The use of maps necessarily implies that someone else has been there first, but is no less interesting – I have just bought a large-scale ordnance survey map of England in digital form so that I can scroll across it as we drive (as my wife drives, I should say), so interested am I in the landscape through which we pass.

If you are American, you do not need to go abroad to find stirring examples of exploration, and many of them are more or less in your own backyard. The names which come to mind are those of Lewis and Clark, whose expedition of 1804 to 1806 was the first overland exploration to the Pacific coast and back. That had a political and commercial purpose going beyond mere exploration for its own sake, since the US was in the process of undertaking the Louisiana Purchase, and neither it nor the French who were selling it, knew how big the acquisition was. We now know that it comprises about 23% of the modern US.

I am brought to this apparently random line of thought by a reference in Tom O’Connor’s recently published Top 10 EDD Tips for General Counsel, which can be found on the Law Technology News website (the second article on that page) and were the subject of Tom’s Masters Conference webcast. One which caught my eye was Point 5 which reads:

Talk to your IT department. They know how to make the map. You are Lewis and Clark, they are Sacajawea. You absolutely cannot navigate without them.

Packed programme for Masters Conference

The 2009 Masters Conference takes place in Washington on 12 and 13 October. Its title, Global Corporate Change – Navigating Discovery, Risk and Security covers only a fraction of the subjects covered in two days.

The best part for me last year, and the main reason I went, was a keynote speech by US Magistrate Judge John Facciola which I reported at length (see Leadership in Litigation). This took the debate beyond court rules and litigation technology and up into the importance of the court as a component of society. There is a direct line between competence and the efficient use of technology (on the one hand) and access to justice (on the other). Lawyers, judges, and governments which do not to make the courts accessible to everybody are not just failing their clients, the parties appearing before them or those whom they govern. Judge Facciola has the knack of making these things sound not just worthy sentiments but objectives directly related to our daily work.

What makes this job interesting is the breadth, from the minutiae of data handling to matters of state policy. There is almost no corner of the field which is not touched on in the course of the two day conference. If I pick out just the sessions from the program on the entirely random basis that I know the speakers, that is enough to give you the flavour of it.

Information retention at e-Disclosure conference in Brussels

I demonstrated my own commitment to information retention by mislaying my notes of the sessions at IQPC’s Information Retention and E-Disclosure Management Europe Conference in Brussels last week. As with all the best document retention policies, this means that I do not have to wade through masses of information and can focus instead only on that which is important – “important” in this context meaning what I can remember. It is reasonable to assume, perhaps, that the bits I remember are those which mattered most.

Patrick Burke and Judge Peck

We kicked off with a judicial panel moderated by Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software. Patrick is one of the relatively few in the US who “gets” the idea that, however sophisticated the US legal system may be in many respects, those who do business in a multinational context must take notice of jurisdictional differences. Rather too many assume that things are much the same over here if you shout and wave your arms about.

Learning in good company at IQPC e-Disclosure Conference in Brussels

I got back late on Thursday from IQPC’s Information Retention and E-Disclosure Management Europe conference in Brussels. I was on three panels on the first day, attended several others, met or re-met countless people, and yet seemed in retrospect to have spent most of the time eating and drinking. You will forgive me if this post deals with impressions rather than detail.

It is hard to convey how enjoyable these conferences can be. The concentration of raw information and informed comment into two days is not incompatible with having a good time. No one goes just for the pleasurable side, but you do not need to be an information management junkie to enjoy it, whether in the session rooms, in the networking breaks between formal sessions, and in the restaurants and bars afterwards.

Chris Dale at IQPC Brussels

I will write about some of the sessions separately, and this post is just an overview to give a broad impression for those who have not yet attended one of these conferences. IQPC do them better than most, and months of serious planning goes into them. Of course, if your company has no electronic documents or if your litigation department clients foresee no need to sue, and no risk of being sued or being visited by a regulator, then an e-disclosure conference is not for you. For anyone else, it is a cost-effective way of catching up with what is going on, in pleasant surroundings and congenial company. If part of the appeal is hearing from those who do know about the subject – the legal, practical and technological aspects – another, and under-rated, aspect is the opportunity to mix with those whose knowledge, or lack of it, is no higher than your own.

Federal Court of Australia re-issues PN 17

Your heart sinks when you see a headline like that. PN 17 re-issued already? It only came into force in February. What can have turned up which warranted re-issuing it?

It transpires that this is the result of a re-numbering exercise consequent on a decision that only two forms of practice documents will be issued by the Federal Court of Australia, Practice Notes issued by the Chief Justice and local Administrative Notices issued by each District Registrar.

PN 17 is now PN CM 6 and is now entitled Electronic Technology in Litigation. My thanks to Seamus Byrne for providing the links and to Michelle Mahoney of Mallesons who, as always, was quickest to the draw when it comes to ferreting out useful pointers.

Clearing the decks before going to Brussels

I do not pretend that this job is hard work in the way that trying to reach a sales target or managing a large project is hard work. It is far too enjoyable for that. It would, however, be good if all these interesting things could be spread out more evenly across the year.

Did I really agree to deliver 10,000 words for a book chapter on digital evidence by 1 October? Did that have to coincide with finishing off two white papers? Why do all the conferences end up bunched together (three conferences in three continents in three weeks starting this week in Brussels)? Are the Twitter eDiscovery lists always so full of interesting stories to follow up, or have I joined in at a particularly interesting point?  I could write ten stories a day entirely from the leads on there alone – but for the book, white papers and the conferences, that is.

e-Disclosure is like opera – you do not start with Wagner

I am fond of analogies, as you know, and everything from motorway signs to Roman bridges gets pulled into service to illustrate e-disclosure points. It seems to be catching: Craig Earnshaw of FTI Technology in London came up with another when I was speaking to him a few days ago.

I often make the point that suppliers’ inevitable focus on their bigger cases tends to obscure their willingness and ability to work cost-effectively on smaller matters. They have only one home page on their website and it is not surprising that they use it to promote the higher end of their range.

It is like introducing people to opera, Craig said. You do not encourage newcomers to sit through the Ring Cycle, but introduce them more gently with Puccini.

It is a good parallel, embracing the sophistication, if that is the right word, of Wagner, the endurance needed to absorb it, the scale and the technical appreciation required. Most electronic disclosure cases are not that big or that sophisticated, and do not require of the user that he or she is deeply knowledgeable about the technology. The challenge of getting someone to attend their first opera is akin to the challenge of getting lawyers to undertake their first e-disclosure exercise.

The best technology is useless without the right people

In electronic disclosure as in everything else, the technology itself is unlikely to cause the problems. For the moment at least, it needs direction from human intelligence. Money spent on equipment is wasted if not supported by a brain cell or two and some project management skills.

The information boards which are spreading along Britain’s motorways are a good example of  technology applied to a useful, everyday purpose. They give the ability to forewarn drivers of danger or delay ahead so that they can slow down, plan a diversion or whatever. You can now even see what the notices say from the website at TrafficEngland – I guess it is technically quite simple  to repeat the information there but that makes it no less useful and it seems very clever even if, as my picture shows, half of them merely consist of nannying advice – there are few things quite so annoying as getting unsolicited advice from people you despise.

Using Twitter to talk to your clients

My article Twitter as a source of e-discovery information drew a comment from Nick Wade, Group Product Manager for Symantec’s Enterprise Vault – Discovery. I had focused on Twitter as merely a source of information. Nick draws attention to its value for keeping in touch with customers, and points to other resources. His comment is as follows:

Great article on the expanding role of social media in our world of Discovery news, Twitter being one of those prime avenues of faster information dissemination. I was also interested as I worked at Mallesons quite some time ago, and I still enjoy seeing my old colleagues’ names in the stream.

I also think an excellent example of Twitter’s use is to find like-minded people and have a new ability to engage in short conversations with them. Shel Israel (http://twitter.com/shelisrael) has written a fine book about this and I’m reading it now; Twitterville. I heartily recommend it, as it’s a strong follow-up to his first book co-written with Robert Scoble (Naked Conversations). And here’s one final use; a lot of companies use it to find new avenues with which to talk to their customers. We do it at Symantec and it has been very useful not only to point people at articles, releases, technotes, webcasts and so forth, but to help with problems and resolve questions – all more quickly than we could before. Companies should be in Twitterville (as Shel says).

One quick thing – I’d certainly find it useful if you provided a link to Michelle’s twitter (in this instance) [quite right - have done so].

More than one reason for new FTI Paris presence

It is interesting to find FTI Consulting, Inc. opening a new forensic and litigation consulting practice in Paris. There is more to this, I suspect, than the economic truism that, for those who can afford it, recession is the best time to expand and to invest against the anticipated upturn.

The press release gives three reasons for opening a new office – to deliver forensic accounting and litigation consulting to FTI’s existing French and French speaking clients, to develop its international arbitration practice in Paris, and to build on its electronic discovery and forensic technology work in France. I imagine that the business case included other and more specific factors such as the increasing incursions by US courts, regulators and government bodies into non-US subsidiaries and sister companies, investigating fraudulent activity either prompted by or exposed by the recession, and increasing activity on the part of EU regulators.

FTI are among the sponsors of IQPC’s Information Retention and E-Disclosure Management Conference in Brussels on 30 September and 1 October. My own specific reason for being there is that Guidance Software, another sponsor of the conference  (and, like FTI, a sponsor of the e-Disclosure Information Project), has asked me to take part in a couple of panels. I would be there anyway this year for the same reasons as are behind FTI’s European expansion. There are still seats available if you want to join us there.

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7Safe blogs to keep us informed about e-disclosure forensics

E-disclosure Information Project sponsor 7Safe has joined the growing number of businesses using a blog to pass on information about what it does and what is happening in the company. It is a powerful and cheap marketing medium whatever you are promoting.

It will not surprise you to know that I believe strongly in the role of blogging as a means of conveying business information. My blog began as a backup resource to my website, a place, as I pictured it, where I could drop snippets of information without the relative formality and structure which a website requires. It speedily became my main output platform, a place where I sometimes put thousands of words each week. Although I intended it primarily as a feeder for my website, most of the traffic in fact goes the other way, with my website acting as an index to recent blog articles. I do the same for a law firm client and am about to start another. It works.

Guidance Software launches EnCase Certified eDiscovery Practitioner Program

As you will have gathered from recent posts I am not a supporter of the idea that anyone working in the ediscovery / e-disclosure field must have a certificate to prove their competence. My opposition is based largely on the near-certainty that such a requirement will operate as a bar to new entrants and on the probability that any organisation purporting to offer generalised certification will speedily become a self-perpetuating oligarchy bound up in its own bureaucracy.

I exempted from this opinion the specialised training required for the proper use of highly technical applications – those hiring people who purport to know how to use such products clearly need some evidence that the employee or consultant has reached the developer’s standard of competence, and I cited Guidance Software’s EnCase as an example.

Guidance Software has now supplemented its wide range of training courses with the new EnCase® Certified eDiscovery Practitioner (EnCEP™) program which adds to the bare skills needed to use EnCase by extending out to include planning, project management and best practices in its use. It seems to me to be a logical extension of their application training that EnCase users should understand the legal and the technology context in which EnCase is to be used. This is a step in the right direction.

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The UK is well-placed between the EU and the rest of the eDiscovery world

The first big eDiscovery conference of the autumn is IQPC’s Information Retention and E-Disclosure Management Europe conference in Brussels on 30 September and 1 October. I am going there mainly to take part in a panel organised by Guidance Software involving, amongst others, US Magistrate Judge Andrew Peck of the Southern District of New York, and Senior Master Whitaker of the Queen’s Bench Division, Royal Courts of Justice in London. We are to be joined by three European judges, Judge Abeline Dorothea Reiling, Vice-President of the Amsterdam District Court, Judge Frank Richter of the Supreme Court of Hesse, and Judge Carla Garlatti of the Court of Appeal of Venice.

Although the UK is, perforce, part of mainland Europe for many purposes, one of the (many) differences lies in our respective systems of domestic law. The UK has a common law system very much closer to the US, Australia and Canada than to France, 22 miles away from Dover. The discovery of documents is a common law concept, and one which most of Europe has largely managed to avoid until recently.

Conveying business ideas with short videos

Videos about the e-discovery /e-disclosure industry can be by captains of industry or the junior trainee, can cover everything from pure technology to business commentary, and can be formal or otherwise. A set of short videos by Mike Lynch of Autonomy shows that informed informality from the top can come across well.

I am, as I have mentioned, finding some interest in the idea of using videos, and specifically videos delivered by YouTube, as a means of getting the e-disclosure / e-discovery messages across. I was attracted partly by their immediacy and accessibility, but also by the fact that they suited the times both as to their cost (which can be minimal) and their use of popular technology to convey technology messages.

The potential scope is extremely wide, ranging from technical explanations (“here is an example of conceptual search”) to putting illustrative flesh on narrative bones so that bald references to, say, forensic collection of data might be illustrated by a short film showing somebody doing just that.

Such videos do not have to be technical. Electronic discovery / disclosure involves businesses of all sizes, from established giants to hopeful start-ups. There is value in hearing from those who have made it with messages for those who hope to follow them.

EMC and Kazeon: can we have Twitter back please?

I am new to Twitter and have yet to get to grips with all the conventions. Its primary use amongst eDiscovery people (no-one there talks of e-disclosure, alas) seems to be to refer others to interesting articles elsewhere. That seems to me to be a worthwhile function by itself, with the other networking benefits (which I am yet to get into) as a bonus. It has obvious marketing potential for the wholly legitimate reason that joining in is part of the collaborative spread of information about the subject which has the potential to benefit everyone  – the referrer, the author of the source referred to, interested bystanders (which may include potential buyers), and the market generally. So far as I can see, only one participant is using its tweets as a bald advertisement, and I hope everyone else will boycott them.

If I could wish for one thing, it is that people would refrain from making multiple references to the same source in close succession. There is a distinction here between what you might call “thoughtful” articles (or less than thoughtful in the case of a recent FT one presently causing a stir) and mere press releases – the former might warrant the endorsement of several tweeters whereas the latter really only needs one reference every few hours. The point emerged in relation to the announcement of EMC’s acquisition of Kazeon. Sure, it is news of some significance, but it is hard to see who benefited from several days’ worth of tweets pointing to the press release. As I remarked elsewhere, the first 30 or so were enough to convey the message, and all the repeats simply drowned out other, and potentially more interesting, references. You need to be pretty dedicated (or have a lot of time on your hands) to pay attention to every one.

How was ILTA for you?

There are two halves to the question “How was ILTA for you?”. One is the personal reaction. Did I learn something and see some interesting technology? Did I meet interesting people? Did I have fun? The answer to all these questions is Yes, as I expected. The more serious question concerns the state of the industry, by which I mean the lawyers who are involved in e-discovery for litigation and regulation and their clients as well as those who provide software and services to them. Let’s take the easy bit first.

I am luckier than most at ILTA. I have no responsibilities apart from talking to pleasant people about a subject in which I am interested. I have no stands to put up and man; I do not have to do any hard selling or make any buying decisions; such formal meetings as I have are a pleasure rather than a burden; I do not have projects running back in the office and anxious clients to keep contact with; I have no staff to be responsible for nor is anyone responsible for me. My sole “duty” is to see people I know and like, to meet people I do not know, and to write about some of it afterwards.

On that basis, I am easily pleased. The venue was just fine, the organisation impeccable, the sessions and booths interesting, and I was in conversation with agreeable people from arrival to departure except when I chose to sit quietly writing. A lawyer from the US, the UK, or anywhere else where documents are collected for civil proceedings could have informed him or herself at any level – those new to the subject get a gentle immersion which they can take at their own pace, whether in sessions, by going round the stands or by just talking to others; those who want a higher level of learning, technology or discussion can easily find it.

News from the front at ILTA

It overstates it more than a little to call this news. There are rumours of news but, as I write this on Monday, the vendor stands are still being put up and, if there are announcements being made, I am missing them [correction: FTI Technology has just launched Ringtail QuickCull Appliance for In-House E-Discovery sometime between my starting this article and reaching the end. More when I have seen it]. Mind you, you could miss the announcement of a war here.

Bigger in America

It is obvious why American discovery must necessarily be bigger than discovery anywhere else. Everything else is bigger here and it is perhaps a point of honour – there would be a sense of failure if any other country had bigger discovery exercises than America.

Take the rain, for example. It was pouring down when I last left the US, after CEIC in Orlando in May. We could barely see the car in front as we drove to the airport. That same storm seemed to have reached Washington today, as Nigel Murray of Trilantic and I drove towards the Gaylord National Resort in Washington, the venue for ILTA09.

Like its twin in Dallas which was ILTA’s venue last year, this place is enormous. I spent the first hour or so exploring its vastness. It is not that there is nobody here. As its name implies, the Gaylord is a resort, and, for the weekend least, there are a lot of families here. There are two wedding parties going on – I can guess that they are separate parties because their respective guests are stunningly turned out in what appear to be themed uniforms, pale green silk for one and deep red and white for the other. Do only beautiful people go to weddings here or is there something about weddings which makes everyone look attractive? This is another of these “which came first” questions, rather like the ones which arise about the size of document populations – did the technology for document creation and storage develop to meet a need for more documents, or do we create more documents because the technology exists?

London meeting of Women in eDiscovery

I am a supporter of Women in eDiscovery and glad to learn from Laura Kelly of Epiq Systems that the London branch is active. They have a meeting on 17 September at the offices of Fulbright & Jaworski, 85 Fleet Street, London, EC4Y 1AE.

Socha and Gelbmann survey the EDD market

No time to précis it or comment on it, but George Socha and Tom Gelbmann have published their annual overview of the results of their annual survey on the Legal Technology News site.

If asked to pick the most important single observation from it, I would pick the shortage of expertise in the market-place, with providers, law firms and corporates reported as fighting each other for the few people who actually understand what is involved in handling electronic documents. That is important because it can only grow as a problem as we come out of recession. You can take or leave the predictions of 20% or 25% growth which some of the Socha-Gelbmann respondents apparently predict (I am prepared to take them myself) but it is certain that a generation of skilled and knowledgable people is not going to spring from nowhere.

I will give a more thoughtful assessment when I get back from ILTA in Washington. At the moment, my focus is rather more on clearing my decks before heading for the airport.

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Show me more like this

Guidance Software’s new EnCase Portable is interesting enough for itself. The way in which they are promoting it is even more so. The industry as a whole could make use of YouTube’s ability to point users to related material.

I happened to be with Guidance Software on the day that they announced EnCase Portable the new pocket-sized version of their forensic collection application EnCase, at a meeting of their Strategic Advisory Board at CEIC in Orlando in May. We were given a preview of the extremely neat kit — one USB drive containing EnCase and another to hold the data. The ability to put a forensic collection of data into your pocket looks like a proposition which should sell itself.

A couple of weeks earlier, I had written an article called the Untapped potential of YouTube as a promotional medium . The immediate context was the launch that week of a song called What Really Matters to Me by The Phoenix Fall, whose drummer is my son Charlie (it did very well, thank you for asking, and the second one is due out soon). The more important theme of my article, however, was that YouTube offered an instantly accessible promotional vehicle which went far beyond music videos. I raised, but quickly dismissed, the idea that Sir Rupert Jackson might launch his Preliminary Report (which was due out the next day) via a YouTube broadcast, but omitted to mention that Senior Master Whitaker once did a brief YouTube video about e-disclosure.

Web demos allow interest without commitment

Technology companies make little use of technology to deliver their messages. Web demos may lack the personal touch of a face-to-face show, but you can reach many more people. They offer unparalleled opportunities to show off your products without the mutual commitment which a physical demo offers. The committed people will find you anyway – it is the others you need to reach.

The two web resources I talk about (from Anacomp/CaseLogistix here and Guidance Software in a separate article) are two I fell over (and the fact that I did so is perhaps interesting in its own right, since being found by people who are not looking is an obvious plus). I am sure they are not the only ones – let me know if you own, or have found, a web demonstration which is interesting as an informational medium.

I wrote recently about software demonstrations which I organised for Lord Justice Jackson (Jackson Litigation Costs Review consultation ends). Epiq Systems, Autonomy,  and FTI Technology each sent along their best demonstrators and compressed their shows into 30 minutes each. The result was one of the most illuminating sessions I have ever seen.

You probably need to be a Lord Justice of Appeal with a report to write to command such a luxury. It is difficult for lawyers to organise multiple demonstrations and for suppliers to send their best men to every firm or company which expresses mild interest in their product. Not the least of the problems is that lawyers are fairly wary of expressing even mild interest. Merely putting their head above the parapet will, they fear, lead to a constant barrage of calls from an eager salesman keen to convert that mild interest into a sale, preferably a big one and during the current quarter. That dreadful question “so how soon will you be making a decision?” is the biggest deal-killer there is, and fear of it puts off those who simply know want what is out there or even just to understand the concepts. The supplier, for its part, has finite resources and an obvious wish to focus on the key targets. The salesmen himself (and it usually is a him) has an obvious personal interest in spending his time with those most likely to reach a quick decision.

How can we do this differently?

I am sent a fair number of press releases, although many of those who know I am interested in them seem to think that I acquire my information by some kind of intuition. Many of the PRs I do get add little to the sum of human knowledge. Many more, themselves worth following up, join a queue whose head they never reach. It is all a matter of timing. The upside to my refusal to do copy-paste journalism may be more reflective comment, but there are only seven working days in the week and a press release needs a wider context than merely its own news.

As I mentioned in a post last week (The right combination of skills at the best possible price) H5 dropped a press release into my InBox as I was writing an article about litigation lawyers dividing up cases and passing on the functions which they either do not do very well or cannot do cost effectively (or “cheaply” as the client would put it). I had in mind the marketing collateral, as well as the working benefits, of an approach which shifted the focus away from charging rates and towards placing tasks where they could be done best. The immediate context was outsourcing, for example of litigation coding and first-pass review, but I made the point that such a division of labour may be a marriage of equals rather than merely lawyers hiving off the unprofitable stuff and sending it down the food-chain. The H5 press release related to just such a marriage of equals, in this case between H5 and O’Melveny & Myers.

Equivio>Relevance Case Studies – men against machines

It is always helpful, when introducing something new, to be able to measure it against a familiar yardstick. When engines were first invented, their power was expressed as a multiple of the power of horses, and horses remain the comparator even now – highly sophisticated motorcars are still advertised by reference to the number of carthorses it would take to generate the same power output. We help each other to picture dimensions – height, length or area – by reference (in England at any rate) to Nelson’s Column, a London bus or a football pitch. I have heard document volumes expressed as “ESBs”, that is, the number of Empire State Buildings they would make if stacked (1 ESB = 7.57575758 Nelson’s Columns in case you wondered). We still refer to a “Gold standard”, although gold ceased to be the common medium of international exchange in 1971.

It is generally accepted by lawyers that the gold standard for accuracy of document review is reading by humans. For many lawyers, this is the standard to which they aspire and which they feel their duty requires of them. This is not the same as turning their backs on electronic review – they may be happy to conduct their review on the screen rather than on paper but are unwilling to delegate to a machine the task of deciding which documents must be reviewed and what decisions are made about them. It only when they get a case which cannot possibly be handled on this basis, that is, cannot be culled and filtered by humans, that they turn to technology.

The e-discovery black box

I am not sure how they keep the standard up, but CaseCentral has been publishing a constant stream of cartoons about e-discovery which must have done wonders for their profile. If I copied every one I liked, I would by now have run out of my allocation of storage space.

A recent one called The e-discovery black box encapsulates well the lawyer’s understanding of what goes on between asking “the system” a question and getting the answer. Charles Christian has beaten me to its republication, and it is easier to link to his copy than to make my own.

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How big is the London e-disclosure market?

I may have brought you here under false pretences. I have no idea how big the London e-disclosure market is and I do not think that anyone else does either. I occasionally hear confident assertions suggesting that there is either much more or much less e-disclosure going on than people think but, since the starting point for these relative assessments is never specified, it is hard to deduce what “much more” or “much less” actually means. There is much less here than there is in America, but the same is true (for different reasons) of caribou and McDonald’s outlets. It is a statement of the obvious, rather than a valuable piece of market intelligence.

Jackson Litigation Costs Review consultation ends

A few seconds before midnight on Friday, an e-mail arrived from Abigail Pilkington, the Clerk to the Review of Civil Litigation Costs. It was a bit eerie, really. The East Wing of the Royal Courts of Justice is a cavernous, Gothic place at the best of times, like Hogwarts without the wizards. I got locked into an upper corridor one evening, many years ago (accidentally, I should say, looking for a judge to grant an injunction) and found it a disquieting experience. I pictured Abigail on her own in the gloom, conscientiously sending out acknowledgements to late submissions like mine. Closer inspection showed firstly that the e-mail was an autoreply, and secondly that it had actually been sent within a few moments of me sending my e-mail earlier that day. Perhaps the RCJ needs some wizards to look at it is e-mail system.

The message included a reminder that submissions must also be sent as hard copy. Fortunately (since the 31 July deadline was due to expire 30 seconds later), I had finished my submission with a day in hand and had noticed the requirement to send a hard copy in the nick of time. That took me back a bit – I don’t think I have sent out a hard copy of anything this century. I blew dust off the printer, and found one of those plastic spines which had fortunately survived my recent cull of office equipment which I don’t use any more. After lots of faffing about with envelopes and Sellotape, I set off to find a post office. Gordon Brown’s commitment to public services has included closing many of these essential local services, and our nearest one, some way off, is run with that surly inattentiveness which results from having a monopoly. You can’t drive to it – there is usually a queue, and the traffic wardens are the only competent and efficient representatives of our local authorities here in Oxford. So I waited for a gap in the rain, and walked to the post office, queued by the notices warning of all the services which post offices do not provide any more, had my package weighed, paid for the stamp, and trudged back to my desk.

Once bitten is twice shy – but you may find that things have changed

My experience of trying voice recognition software again after a failed experiment some years ago, has messages for those who have not caught up with developments in litigation support software.

I have come back to voice recognition software after many years of assuming that it was an unwieldy and inaccurate method of transferring words from head to screen. I am immediately hooked and regret all those years spent crouched over a keyboard. Or do I? Is it possible that I have come back to it just at the point where it has reached a level of accuracy which is adequate for my needs, and just when those needs are greatest?

The e-disclosure context here is all those potential users of litigation support applications who dip their toes into the water once and retreat vowing never to try again. Some inadequacy, ranging from an outright system failure which lost their case through to a minor annoyance which became too tiresome to tolerate put them off, often with cries of “I told you so” ringing in their ears.

Outsource edisclosure and share the load

The outsourcing of legal functions is suddenly topical as a result of Rio Tinto’s decision to set up an outsourced legal resource in India and Pinsent Masons’ plan to have first pass litigation review done in South Africa – see Do two outsourcing stories in one week presage a trend?

Those who think that this is taking outsourcing too far, as it were, should bear in mind that the principles, the potential savings and the ability to add e-disclosure skills and resources to their litigation armoury are available much closer to home. Furthermore, they need make no upfront investment beyond a little training, and can get started tomorrow.

The first generations of litigation support applications generally required that a law firm purchased the software for in-house use and that they employed staff to administer it. The world has moved on since then, and those tools and resources and are more usually brought on board by having the documents data hosted by a third party, usually the software provider. This has many advantages, not least the fact that someone else incurs the capital outlay and takes responsibility keeping the data available 24/7. The law firm simply gets a bill for the rental of the server space, the provision of the software and any consultancy or data services which are required. The bill can be passed on to the client as a disbursement.

Autonomy integrates workflow into iManage Worksite

Those whose involvement with information management comes at the discovery end of the process have come to take for granted the immense sophistication of some of the applications available at this end of the EDRM (Electronic Discovery Reference Model). One of the reasons why this is necessary is that the clients have done little to sort, filter and classify their documents as they went along.

The lawyers can compound this potential for confusion at the inception of a matter. Things happen in a rush, with forms to complete, accounts to open, standard documents to send out and track and various forms of checks to undertake – does this client or its matter raise client conflicts? Does taking on the work conflict with some ethical position which the firm (or another big client) has taken? All this has to happen at the same time as the client is sending in the first batch of documents about the matter with the breathless request to know if they will win or lose. Some of the letters and other documents and transactions require approvals, with a corresponding need to route requests and relay the reaction.

Australia at the centre of the discovery world

The default map of the world shows Britain in the middle and near the top, with Alaska at top left and New Zealand at bottom right. Perhaps that is because Europe invented the Greenwich Meridian; maybe it is a legacy of Empire or a conspiracy of cartographers (the phrase is Tom Stoppard’s);  possibly the maps in Australia are centred on Canberra, with Iceland and Cape Horn as their left and right extremes. By any measure, anywhere else is a long way from Australia. Its influence in the world of electronic discovery is disproportionately large.

Equivio appeal to corporate IT

Back in March, I wrote about an interview which I had conducted with Warwick Sharp, Vice President of Marketing and Business Development at Equivio (see Podcast summarisises Equivio benefits). A transcript of the interview was first published in Enterprise Technology Management (ETM), Q1 2009. ETM is produced by Informed Market Intelligence (IMI), London.

IMI’s primary audience is described thus:

Information technology has evolved to be the cornerstone of all business activity. Business strategy and technology solutions have become so intertwined that IT is now the driving force behind business success or downfall.

As a result of this convergence, a new type of IT executive has emerged: one who spends the majority of his or her time on business strategy, working hand-in-hand with business colleagues to not only support but actually drive business success.

Today’s global companies need to be strategic thinkers, able to move beyond reactive and even responsive behaviour. They need to be predictive, setting the technology agenda based on their understanding of where business and technology are moving. They need to ensure that all technology investments are driven by business strategy, and that IT is being used to ensure agility and innovation throughout the organization.

My own primary audience is further along the chain, the lawyers and judges who are responsible for handling electronic discovery for litigation, regulatory and related purposes, and the suppliers who serve them. There is, however, a close relationship between the two audiences – it is the corporate IT executives who own and control the data which ends up as the raw material for disclosure. There are two ways in which we can influence the latter to be more strategic and predictive – by anticipating the company’s disclosure requirements in their information management strategies, and by working more closely with the company’s lawyers both to be ready for any disclosure eventuality and when an actual requirement arises.

Sedona Conference dialogue on cross-border discovery in Barcelona

As I have noted elsewhere, I had my own cross-border problems in getting to the Sedona Conference International Programme on Cross-Border eDiscovery, eDisclosure and Data Privacy Conflicts in Barcelona on 10-11 June. I was chairing an edisclosure conference in London the previous day and due in Sydney at the week-end and, in consequence, arrived late in Barcelona and left as soon as the main business ended.

I am spared my usual faithful accounts of the sessions by Sedona’s sensible rule that “what happens at Sedona stays at Sedona”. My mission generally is to get as wide an audience as possible for what is said at conferences, but I am more than happy to submit to the restriction in this context, partly because there is more than enough else to write up and partly because the density of the dialogue (and Sedona is expressly committed to dialogue rather than debate) is such that you would need a book to do justice to its proceedings.

It seems sensible instead to juxtapose some stereotypes against the reality in an attempt to show those new to the subject what the broad picture is. This matters because cross-border issues inevitably involve cross-cultural matters as well as conflicts of laws. The best and most topical summary of the issues is Working Document 1/2009 on pre-trial discovery for cross border civil litigation prepared by a Working Party set up under Article 29 of EU Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Its introduction recites the problem thus:

Ark Group e-Disclosure Conference 2009

You can generate a lot of notes in six conference days in three countries in nine days and have little time to transcribe them. I am quite good at actually recording what people say, less so at the small but telling details like headings and page-numbering. I can generally rely on my memory to fill the gaps in my notes (and the bits I cannot read) but that is a tall order when information has rolled at me continuously for days like infantry at the Somme. Ark Group’s e-disclosure conference of the beginning of last week seems a distant memory on a cold, wet dawn in Sydney ten days later when I started writing it all up, still more in the dark aeroplane cabin surrounded by snoring travellers on the way home when I finished it off. There was lots of good stuff said at the conference, but I doubt you would read a verbatim account even if I could set it down. What follows is a summary.

The chairman on Day 1 was Lee Gluyas of DLA Piper UK LLP who, as in previous years, was well up to the challenge of keeping speakers to time. Lee’s opening comments identified a positive shift over the time he had been filling this role, a greater awareness of the issues and the need to grapple with them.

Jackson conference challenge to litigation support providers

Lord Justice Jackson laid down a challenge to litigation support providers at the Ark Group e-Disclosure 2009 conference in London last week. They must, he said, find a way to bring down the cost of e-disclosure; if they cannot, then the basis of disclosure will have to be changed. Other jurisdictions provide a disputes forum which does not require the parties to undertake the vast exercises which are needed for compliance with the existing disclosure regime. The implication was that the old and treasured principle that all the evidence must be rigorously examined is threatened by the brute fact that the cost of conducting that examination is too high.

There is much more to say about this than can be fitted into an account of a two day conference, so I will settle for a bullet point summary of the other elements which contribute more to the costs than most suppliers do:

In travelling as in most services delivery, it is the little things which matter

If this piece has any e-discovery parallels at all, they are to do with project management and the contingencies of time and cost which turn up in any project. It is also about the apparently trivial things which flavour a user’s experience. I am attending three conferences in sequence, and will cover them in various posts. This one is mainly about the glue holding the conferences together – the journeys in between. Like any other form of service delivery, the small things make a difference.

The primary components in travelling work quite well really. Take railways: the concept of a set of parallel metal tracks, unimpeded by third parties, should be unbeatable as a service, with no major changes in principle since Brunel’s day. It is the people running it who f*** it up. Or flying: the idea that a large metal box can take to the air and put you down safely and on time half-way round the world remains remarkable all these years after Wilbur (or was it Orville?) flew a few feet across the dunes at Kittyhawk. The fact that you can look up, book and pay for all these things, research hotels at your destination, check the weather there and make contact with everyone who needs to know your plans, all from your desk, is pretty fantastic also, and that you can do most of that whilst in transit from a little box in your pocket even more so.

It is the little things which let it down though – lack of thought about details, or bloody-mindedness, or price. I am, for example, sitting on the floor at Bangkok airport whilst I type the beginning of this piece. Bangkok is a major airline transfer hub, a place where people from all over the world have to wait for an hour or four between flights. There is everything one could want here including, incongruously, Boots the Chemist and Whittards of Chelsea, but barely enough seating except at the gates. If we are sitting down, we are not adding to the footfall which drives the rents in this vast shopping centre in the middle of nowhere – and the simple way to keep us moving round the shops, they think, is to provide only a few seats. It is an attitude called “sod the customer”. It is a trivial point compared with things like the wings staying on but I will not choose to pass this way again if I can help it – and there is a choice.

Remember to seek disclosure of telephone recordings

A “document” is defined in Rule 31.4 CPR as “anything on which information of any kind is recorded”. Lawyers brought up in the days of paper disclosure, even those who have adjusted to electronic versions of those paper documents such as the source Word file, may overlook other things “on which information of any kind is recorded”.

At the top of the list comes recordings of telephone conversations. These days, our most mundane calls are preceded by a message warning us that our call may be recorded “for training purposes”. If that was indeed its only purpose, then the warning is little more than aural clutter to make us hate the company even more than we do already – most of us come across these messages when dealing with our ISP, utilities provider or similar organisation whose institutional incompetence extends to the erection of barriers against the customer. The added delay whilst some Estuary-accented trollop warns you about recordings certainly succeeds in putting me off making any call which is not vital, as is doubtless intended.

The anatomy of practical disclosure and the body of evidence

Having not previously opened my doors to guest contributors, I now do so for the second time in a week. Legal Inc, who are amongst the sponsors of the e-Disclosure Information Project, held a workshop with the medical title shown above at IQPC’s  Information Retention and E-Disclosure Management Conference on 19 May. I was in Orlando at CEIC 2009 and asked Andrew Haslam to write it up for me. This is his report:

Graphical display of thesaurus terms

The graphical display of discovery / disclosure information has been one of the most interesting developments in software designed for search of all kinds. It is specifically so for litigation document review purposes and, perhaps even more so, for early case assessments when you are trying to find out just what the scope is of your document universe.

One of the distinguishing features of such a task is that the searcher often has no real idea of what the search will turn up. In most areas of research, you have a broad idea of the parameters of the hunt – I have been looking up flights and hotels recently, for example, and had the advantage of knowing that I was after a particular kind of information (a hotel, say) in a particular place (or places, given the particularly daft schedule which faces me over the next few days). Ranging shots in Google brought me to specialised databases which had fields to search in which corresponded with obvious inputs – dates, room-type, number of nights and so on – which are standard across most such resources.

Litigation is often not like that. You will, of course, have got from your clients some clues – names, date ranges, commonly-used words and so on – but whilst they may narrow the field, they are not conclusive as to what you might turn up, not least because you (if you are a lawyer) are an officer of the court as well as the client’s gladiator, and it is your practising certificate and insurance policy which is on the line.

Labour’s fall may be matched by litigation’s recovery

I have just sent off my slides for my keynote speech at the Ark Group’s e-disclosure conference on Monday 9 June. Its title is The Empty Bear Garden, and it is about the decline of litigation since the CPR of 1999 and what we can do to stem that. My conclusion is that we are in a position to turn the tide and will do so if we pay more attention to the balance between rules and discretion, focus more on what really matters and what clients want, and be willing to challenge some of the existing orthodoxies.

Roughly the same period, since New Labour’s election in 1997, has seen the rise of what the Institute for Public Policy Research recently called “intolerant centralism”. The state has become ever more intrusive into our lives at several levels: vast databases record every aspect of our lives; cameras watch our every move; faceless bureaucrats have acquired powers way beyond their abilities; widely-drawn (and badly-drawn) laws give policemen and others in uniform the purported right to exercise a discretion unintended by Parliament; highways officers at the bottom of life’s intellectual pile clutter our roads with notices and urge us to “think”; ministers who appear on the surface to have been merely useless (Jacquie Smith) or deeply stupid (Caroline Flint) emerge as sinister, assuming powers over our lives thanks to their party’s majority which we would never grant them as individuals; MPs behave as if the norms of society do not apply to them, relying on the letter, but forgetting the spirit, of the law; rules multiply, each one having the effect of  nullifying our scope and ability to think for ourselves.

Recommind recommends recognising risks of e-disclosure unreadiness

I do not take a great deal of notice of press releases. If they are interesting, everyone else will gamely recycle their contents, and who wants to be like everyone else? If they are not…. you don’t need me to finish the sentence. And when I say “recycle their contents”, I mean just that – a quick copy and paste and they are done – instant journalism. It has its place but it is not what I like to do.

I do, however, like to be sent PRs, so that I can decide if they are worth the trouble of translating from their native Marketing Crap into English. All those tri-partite, polysyllabic, hyperbolic exaggerations (like that one) which someone has laboured over so assiduously have to be stripped out to try and divine what actually matters (try it: look at most PRs in this business and you will find that every verb has three long adverbs and every noun has three adjectives  – “rapidly, accurately and defensibly” or  “innovative, cost-effective and user-friendly”; once or twice is fine, but by the time you get to the end of a piece in which every word has multiple qualifiers you are gasping for breath).

Nigel Murray makes it to Paris

Hands up all all those who were not convinced that Nigel Murray of Trilantic would manage the 350 miles from the Normandy Beaches to Paris. On a bicycle. In six days. Here is the photograph to prove you wrong.

Nigel Murray arrives in Paris

Back in January, I wrote rather cynically that “I did once see him run, but that was across a pavement to a cab in the rain, so barely counts as an exception to the general rule”, the general rule involving good food, beer and cigarettes. I did not doubt he would do it, though.

The cause was Help for Heroes which supports wounded servicemen. Nigel raised £5,727.87 for this good cause. The event overall has apparently raised over one million pounds.

Nigel kept a record of each day’s events, covering both the cycling and the interesting – and, I suspect, rather emotive – stops which were made at places of significance. His donations page remains open for those who want to help him get past the £6,000 mark.

Well done, Nigel.

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Ian Manning now at Raposa Consulting

As regular readers will know, Ian Manning was the initial sponsor of the e-Disclosure Information Project, providing continued support despite his never-ending overseas travel commitments for FoxData Ltd.   Ian’s extensive experience in forensic collections for commercial litigation and regulatory enquiries has provided valuable market intelligence to the Project as well as many e-disclosure anecdotes which have served as the basis for after-dinner conversations.

The point of all this is to explain to those familiar with my web site and blog the changes you will no doubt notice on it.  Ian’s management association with FoxData Ltd ceased at the end of March 2009.  However, as I hoped, Ian is keen to continue his personal support for the e-Disclosure Information Project.  This support will come via his company Raposa Consulting Ltd.

To find out more about Raposa Consulting go to www.raposadata.com

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Mock e-Disclosure hearing photographs

For those who have already seen the post about our mock e-disclosure hearing at IQPC last week, I have now added some photographs to it.

They and others can also be found here. They were all taken by Sonia Perez of Guidance Software.

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Making a play to sugar the e-disclosure pill

In a previous post (The discovery of disclosure commonality with a trans-Atlantic judicial panel)  I told how IQPC had, at my suggestion,  invited US Magistrate Judge John Facciola and Chief US Magistrate Judge Paul Grimm to come to their Information Retention and E-Discovery Management Conference last week and then asked me how I would like to make use of their talents.

One answer was the trans-Atlantic judicial panel which I described in that post, with Senior Master Whitaker, HHJ Simon Brown QC, Judge Grimm, Judge Facciola and me, moderated by Patrick Burke of Guidance Software. I have long wanted to do a mock e-disclosure hearing and this seemed a perfect opportunity. I saw one a couple of years ago in London in which Judge Facciola played – naturally – a judge. That had aimed at both US and UK procedures simultaneously and had, I thought, fallen between two stools in doing so. I wanted to do one under the English rules. We have had three cases recently – Digicel v Cable & Wireless, Abela v Hammond Suddards and Hedrich v Standard Bank London which had shown the downsides of not following the co-operation obligations under the Practice Direction to Part 31 CPR. Judge Grimm and Judge Facciola have been eloquent in their criticism of those who do not co-operate to reduce costs and who do not display the level of competence required of those who practice litigation. Why not cast them as the judge hearing an application by advocates who fell short of those standards, using facts similar to those of the English cases?

The discovery of disclosure commonality with a trans-Atlantic judicial panel

If I were to define a perfect working day it would go something like this: wake up in a comfortable hotel and take a five minute stroll to Piccadilly; sit on a platform with the two leading US and the two leading UK e-discovery judges and discuss developments in the two jurisdictions; go and see Lord Justice Jackson to discuss the e-disclosure parts of his report; take part in the premiere of your first play, a courtroom drama in which the judges are played by judges and the advocates by people whose life has been spent at the bar; then dine at Rules before going home with the sense, which others seem to share, that the disclosure world has moved on a bit that day.

It sounds all right as a way of passing the time, does it not? So that is what I did on Thursday, on Day 2 of IQPC’s Information Retention and E-Discovery Management Conference. I am but the Boswell to the distinguished set of Dr Johnsons who took part in all this and my main contribution was made months ago. I am on the Advisory Board for the conference, and Sarah Haynes of IQPC rang me up and asked which US judge should be asked to take part in the judicial panel which Guidance Software were intending to run. “Ask Grimm or Facciola” I said, much as one might say “Get Kidman or Jolie” for a film, or “Ask Rooney or Ferdinand” round to play football. Sarah rang back a few days later and said “They are coming – what would you like them to do?”

Everything and everyone at the IQPC Information Retention and E-Discovery Management Conference

I reached IQPC’s Information Retention and E-Discovery Management  Conference 2009 just as the first speaker stood up on Wednesday morning, feeling rather like Phileas Fogg as he burst into the Reform Club with seconds to spare. Although I had not been round the world in 80 days, it felt like it after the 4336 miles overnight from Orlando (see posts here and here as to why I was in Orlando). At least it was warm and sunny in London, unlike damp, dank Florida.

The IQPC e-discovery conference is one of the best in the London calendar, as much for the people one meets there as for the content. At my first, two years ago, I was introduced to three people on one day who have directly contributed to what I do now. Victor Limongelli, now CEO of Guidance Software, gave the first talk I had heard which drew attention to the similarities and differences between US and UK procedure and practice. Master Whitaker spoke rather pessimistically about the difficulties of persuading judges and practitioners that the proper court management of electronic documents was vital to control litigation costs. Mark Surguy of Pinsent Masons talked about the need for lawyers to understand technology and to get to know some providers of software and services who could help them.

More than just ediscovery panels at CEIC 2009

I have already written (Describing the e-discovery elephant) about the two e-discovery panels which I took part in at CEIC 2009. The panels were only one of the reasons why I came here. There was another formal reason and countless informal ones.

The other formal reason was a meeting of Guidance Software’s Strategic Advisory Board which brought together a small group of people from different parts of the e-discovery field  – two General Counsel responsible for electronic discovery in large corporations, two well-known private-practice lawyers specialising in e-discovery, and two industry experts from other jurisdictions – who sat down with senior executives from different areas of the company’s activities. The traffic passes both ways at these things – the company gets input from those outside it and the invited members learn more about what the company is doing and what it plans to do.  Discussion ranges beyond the company and into the wider industry, with the combination of the occasion and the assembled company taking us down ways not envisaged in the agenda.

Describing the ediscovery elephant

It is pouring with rain here in Orlando. Every so often, a flash of lightning illuminates the large plastic elephants which stand in the pool beside me. Even the most assiduous English official, never stuck for something to put up a notice about, could not come up with a sign reading “Rocks frighten the elephants. Please do not throw rocks”.

The Loews Royal Pacific Resort at Universal is, as its name implies, a holiday destination as well as a conference centre and you have to choose your bar with care. The one we sat in as we finalised our presentations lies between the pool and the bedrooms, and a stream of near-naked beauties dripped their way past us. If that sounds distracting, it is much better than being approached by Shrek and Princess Fiona, who occupy one of the other bars. We don’t get this sort of thing at London conferences.

I am here for CEIC 2009. The Computer and Enterprise Investigations Conference is run annually by Guidance Software to bring a mixture of technical, legal and business events together for people from corporations, law enforcement and other areas with an interest in data preservation, identification and capture. There are about 800 people here, nearly as many as last year. There are not many conferences which can claim that in 2009. Here you can do anything from polishing up your EnCase certification at one extreme to listening to e-discovery seminars at the other. The East Coast location makes it easier for those from Europe, but does not, alas, guarantee the weather.

Compliance with the demands of an e-disclosure diary

I don’t think I envisaged a peaceful life when I decided to commit all my time to promoting electronic disclosure, but I am not sure either that I foresaw this much activity compressed into a short space. It is just as well that I enjoy it. My original policy never to say no to anything which will get an audience for the subject has had to be modified a bit – double-bookings are difficult, for one thing. Every event involves preparing slides and notes, not just turning up on the day, and the everyday stuff – researching and writing – goes by the board when there is always something happening or about to happen. I would not want it any other way but it would be good to have it better spaced. A summary will have to suffice for now, and the summer promises time to catch up.

Clyde & Co selects Epiq Systems and Trilantic as preferred e-disclosure providers

Although the business of the e-Disclosure Information Project involves telling law firms and corporations about electronic disclosure technology suppliers, I avoid discussions about pending competitive tenders in the e-disclosure market. Given the range of people with whom I am in contact, the chances of hearing twice about the same contract from rival bidders are too high and, metaphorically at least, I put my fingers in my ears if I fear I might learn more than I want to know.

No-one, however, could avoid knowing that Clyde & Co has been working to identify preferred suppliers of electronic disclosure services. It seems ages ago that I first heard about it, in a remote country pub (life is not all glossy conferences and airports, you know) and it became clear that Kevin Butterill, Clyde’s litigation support manager, was extremely keen to get it right. The tender became the Moby Dick of the e-disclosure seas, each provider his own Captain Ahab on a mission to hunt it down.

Guidance Software survey for IQPC

The Information Retention and e-Disclosure Conference run by IQPC is usually one of the best in the calendar, with a better-than-usual mix of corporate users and information professionals. It take place this year on 20 and 21 May at Le Meridien in Piccadilly. As usual, Day 1 is concerned with information management and Day 2 with litigation and regulatory matters.

I have several levels of interest in this conference. I am on its Advisory Board and have been involved in much of the planning. I am doing two judicial sessions on Day 2, of which I will say more shortly. Several of the sponsors of the e-Disclosure Information Project are taking part, including Guidance Software, FTI Technology, Epiq Systems, Autonomy and Legal Inc.

Fast Track Directions in Australian Federal Court

The  Australian Federal Court has promulgated new Fast Track Directions which aim to get a case finished within 5 to 8 months, and to reduce costs by limiting discovery and avoiding lengthy interlocutory disputes.

I have noted before that the Australian courts have a more flexible approach to the eligibility of a case for special tracking arrangements – a case is fit for the fast track (subject to some exceptions) because that is what the parties agree or what the court orders, whereas the UK allocation depends on fixed limits.

Pleadings are replaced with Fast Track Statements, Responses and Cross-Claims. There is an express general duty to co-operate and to act in good faith,expressed thus:

5.1 The Court expects the parties and their representatives to cooperate with, and assist, the Court in ensuring the proceeding is conducted in accordance with the Fast Track Directions so that the real issues in dispute are identified as early as possible and are dealt with in the most efficient way possible.

There is also an extension of that duty to co-operate in respect of interlocutory disputes which is put like this:

5.2    Before making any application relating to an interlocutory dispute (including disputes in relation to discovery), the parties must meet and confer and attempt to resolve the dispute in good faith.  If the parties are unable to resolve the dispute, any application about the issue must contain a certificate by the moving party’s lawyer that the ‘meet and confer’ requirement was completed, though unsuccessful.  Failure to so certify will result in the application being immediately refused.

Discovery itself is limited in a manner which reflects the rules, if not necessarily the practice, under the UK CPR. The requirement is

7.1    Except where expanded or limited by the presiding judge, discovery if ordered in proceedings to which the Fast Track Directions apply will be confined to documents in the following categories:

(a)  documents on which a party intends to rely; and

(b)  documents that have significant probative value adverse to a party’s case.

… and there is a duty to make a ‘good-faith proportionate search’ and to explain what steps have been taken.

The court’s duty of active management is both expressly provided for and clearly implicit in the scheduling arrangements. The new Practice Note  fits briskly on to ten pages. It will be interesting to hear how it goes and what the practitioners and judges feel about it after a year of operations.

My thanks to Geoffrey Lambert of KordaMentha for drawing my attention to the Fast Track Directions.

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Autonomy audio processing for law firms

Autonomy has wasted little time in extending its search technology into the iManage products which came to it with the acquisition of Interwoven. It has announced an audio processing capability for what is now called Autonomy iManage WorkSite.

The business rationale lies in the growing amount of audio which law firms now have. Voice-mails, recorded depositions, in-house educational materials, and a wide range of other sources are now routinely recorded and kept. The need to search them is no less than the need to hunt down documents in more conventional forms – and it is a measure of how far we have come that we now consider Word files, spreadsheets and other electronic files as “conventional”.

Irish discovery rules embrace electronic documents

By happy chance, the discovery rules in Ireland have the same number as those in the Civil Procedure Rules of England & Wales. Order 31 of the Rules of the Superior Courts give the court the power to order discovery of documents between parties. You will spot even from that much that there is a difference from the CPR, under which standard disclosure (as we, stupidly, and alone in the world, call it) is the default in the absence of an agreement or order dispensing with it. In Ireland, a case must be made for it – not difficult in principle in most cases, I imagine, but an interesting and subtle difference of approach.

Dropping in to Oxford, dropping out to Paris

The printed description of a software application’s capabilities is no substitute for interaction with the people who are selling it, just as the bare record of historical narrative without people does little to bring a subject alive. People buy from people, not companies, and that means getting out and about. It is not a contradiction to say that a disparate group of people or businesses can best become a cohesive selling proposition by using a web site.

We may look back on the first few years of this century as a short period when international inter-personal communication was at its best. We can cross the world more efficiently and more cheaply than at any time in history, but electronic virtual communication is also extremely sophisticated. From now on, I suspect, we will see physical travel move further out of reach and electronic connections become so advanced that it will be hard to justify actually going to meet the people you do business with. We will lose something as a result – a personal element in business which is valuable.

The thought was prompted by a conjunction of flying visits. Jo Sherman was with us at the weekend. Jo is the founder and CEO of eDiscovery Tools, an Australian software company which specialises in electronic data discovery for litigation and similar purposes. It is quite a feat for a relatively small Australian company to sell software to major UK and US clients. The secret lies in personal relationships which may make use of electronic communication to some extent but which must be kept warm with face-to-face meetings. Her apparent ubiquity – this is the third time I have seen her this year, here or in New York – must be hard work, but it seems to generate business. Looking at other suppliers, I wonder sometimes if the slashing of travel budgets in this industry is being done for the right reasons – a lot of it seems to me to be more a matter of creating a perception of frugality than part of a coherent plan. Marketing people seem to think that their carefully-drafted prose will do the trick on its own. People buy from people, not flyers and brochures.

Anacomp gets unqualified SAS 70 Type II security certification

Anacomp, which owns the litigation review platform CaseLogistix, has received a full unqualified SAS Type II certification for its hosting and operations centre at Herndon, Virginia. SAS 70 is an auditing standard established by the American Institute of Certified Public Accountants which allows service organizations to demonstrate they have adequate controls and processes.

You can read the press release to get the details. I do not, on the whole, concern myself with the infrastructure aspects. This is not because they are unimportant – far from it – but because my focus is on the user end, the business and legal context in which an application is used, and on the people who develop and sell it and who support the users.

All the news that’s fit to print from Unfiltered Orange

The source for my story about the US – Swiss Safe Harbor was Unfiltered Orange, the electronic discovery resource run by Rob Robinson for Orange Legal Technologies.

Rob’s then e-discovery blog was the first resource I came across when I began to inform myself about US legal and technical e-discovery developments. We have never met, though we must have been simultaneously in the same place at events like LegalTech, but have corresponded over the years.

The resources available from the Unfiltered Orange page include a weekly update e-mail, Twitter and FaceBook. The update covers the Top 25 eDiscovery stories, and if he happens this week to have put one of mine at the top of his list (Distinguishing workplace spying from data collection), that serves merely as a prompt to do something  I have been meaning to do for some time, and point you towards his site.

Identifying, culling and filtering the world’s e-discovery stories is similar in many ways to the exercises which they describe – there are a lot of them and not all are worth looking for or looking at. I have the luxury of choosing only those which interest me personally. Rob Robinson’s self-imposed brief is rather wider and I am, as always, grateful for the pointers he gives to the stories which matter.

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Confounding the expectations of a cynical audience

Susan Boyle, the unlikely-looking star of Britain’s Got Talent, reminds us that first impressions may mislead. You do not know how good something can be unless you see – or, in this case, hear – it. Your cynicism as to e-disclosure, like the judges’ expectations of Miss Boyle, may be founded on some wrong assumptions

It is nearly impossible to sell me something which I did not intend to buy anyway. I am almost immune to impulse buying and am brusque to the point of rudeness with anyone who tries to interest me in something which I did not already have a fixed intention to buy. This, I am told, makes me embarrassing company in New York shops where they simply cannot leave you alone – my son saw one assistant making frantic gestures to head off another who was about to bend my ear with his unsolicited drivel because she had just witnessed me biting the head off the last one who interrupted my train of thought. I hang up on cold-callers who do not deliver a compelling message in ten seconds (sorry all you Indian scanning and coding salesmen) and try and avoid going into my bank now that every cashier is on commission if they manage to sell me something.

This attitude dates from the time when I was IT partner at a large firm of solicitors. Every bloody salesman in London would ring me up just to see if I had changed my mind since the last time I told him to sod off. I know what you are selling, I would say, and as and when I want something like it, I know where to find you. That is not bad training for being on the other side of the fence, where my role now is try and persuade lawyers at least to take a look at the sort of things which litigation applications can do. Lawyers are cynical about attempts to impress them; they think they know what to expect from a demonstration; they are pretty sure that they are not interested and that they will not be made any more so when the salesman opens his mouth.

Distinguishing workplace spying from data collection

It is usually possible to reconcile employees’ legitimate privacy concerns and a company’s equally legitimate rights and obligations to collect data if you go about it properly. A story in Der Spiegel shows what happens when you get it wrong. The story does at least give an opportunity to explain the difference between spy software and data collection.

As its name implies, the e-Disclosure Information Project, which I run, exists to spread knowledge and understanding about the collection and use of electronic documents. My primary focus is on the common law countries (mainly the UK and US) which require discovery of documents in litigation, but the increase in the powers of regulators brings the same issues to countries which do not have that litigation obligation. The area where mainland EU principles collide with US discovery is in relation to privacy and data protection matters. I come across these subjects mainly in the context of trying to explain to Americans what the concepts mean, why they matter rather more to Europeans than to them, and how proper regard to privacy is not necessarily incompatible with an adequate collection of data if they take the trouble to understand both the legislation and the underlying concerns which drive the legislation.

Autonomy appoints Robert Webb QC as non-executive chairman

Autonomy Corporation Plc has appointed Robert Webb QC as its Non-Executive Chairman with effect from 1 May 2009.

Robert Webb was General Counsel at British Airways from 1998 until recently. He practised at the Bar from 1971, becoming Queen’s Counsel, Head of Chambers at 5 Bell Yard and a Crown Court Recorder. He holds a range of other posts, including non-executive directorships at the BBC and the London Stock Exchange. Autonomy’s CEO, Dr Mike Lynch, said of him that “his experience in litigation, regulatory and compliance issues is directly relevant to our current commercial focus”.

The appointment is a reminder that Autonomy is a British company in origin, with dual headquarters in Cambridge and in San Francisco. Those of us whose focus is on the relatively narrow world of litigation and regulation may also overlook the fact that this is only one of the areas in which Autonomy’s enterprise search applications are used by corporations and government departments and agencies.

One of my former partners used to instruct him often, mainly on aviation matters, and his name is familiar from that as well as from his high-profile role at BA. His twenty five years at the Commercial Bar followed by a broad range of roles in industry make him a good choice for his new role at Autonomy.

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Welcome to FTI Technology as a sponsor of the e-Disclosure Information Project

It is very good to welcome FTI Technology as a sponsor of the e-Disclosure Information Project. FTI Technology is a segment of FTI Consulting, Inc., a global business advisory firm, and brings immense resources to bear on the acquisitions and the software development needed to produce a world-class platform for disclosure / discovery.

As usual, I see no point in copy-typing or edit-pasting the perfectly good prose of a well-written press release, and refer you to FTI’s announcement of 27 January 2009 which sets out succinctly what FTI have done with their two flagship electronic discovery acquisitions Attenex and Ringtail Legal. Put shortly, they have integrated the advanced analysis, clustering, rapid review and graphical visualisation strengths of Attenex and the review, redaction and production capabilities of Ringtail.

In layman’s terms (since, as I say, you can read the formal descriptions for yourself) Attenex ploughs through large (very large if that is what you have) data collections, and helps identify material you either want to discard or to review, serving it up in batches. The clustering and visualisation tools allow quick overviews in a form which allows the reviewer to drill down to document level if necessary and to make decisions which both carry through into the detailed review stage and inform decisions about subsequent batches of documents. Ringtail Legal allows you move straight on to the detailed review without having to move the data between applications.

KordaMentha picks EnCase from Guidance Software for Australian eDiscovery

Like sport and so much else, the idea of proving a legal case by discovery of documents is an old English concept which was adopted wherever the English had a hand in establishing a system of law. America kept it when it dumped our tea, our taxes and our King. Australia adopted it with the same enthusiasm as it adopted cricket. A couple of weeks ago, Hong Kong was host to both the Rugby Sevens and our Senior Master Whitaker talking about UK disclosure developments. Discovery is central to Canadian litigation, and Master Whitaker is due to speak about it in Singapore later in the year.

Three things unite all these countries apart from their common law heritage. The problems raised by electronic disclosure are the same everywhere; those of us involved in developing rules and best practices around the world all speak to each other; and there is a handful of suppliers whose applications are used wherever electronic data must be collected and handled for litigation or for regulatory investigation. The resulting cross-fertilisation has obvious benefits – what works in one place will probably work in another, and if an approach tried in one country is seen to have failed, then it is as well to know about it before another jurisdiction goes down the same track. The things I talk about in Birmingham or Bristol are informed by what I Iearn in Sydney or New York, and it would perhaps surprise UK judges and lawyers to know how much interest there is in those places in what happens in the UK.

Welcome to Legal Inc as e-Disclosure Information Project sponsor

I am delighted to welcome Legal Inc as a sponsor of the e-Disclosure Information Project, joining a group which is increasingly representative of the full range of e-disclosure suppliers and service providers.

Legal Inc was set up by Lisa Burton and Dipak Patel. Lisa is a law graduate and Dipak brought technical expertise, the two elements needed to bring technology to lawyers. Legal Inc describes itself as a “full-service one-stop shop” in the field of litigation support. That means that they can take on the whole or any part of a litigation support, e-disclosure and information management project for law firms or corporate clients, working with specialist partners for those things which they do not do themselves.

I see little point in doing a précis of Legal Inc’s services when their web site does that perfectly well for itself (which is not, I should say, true of all the players in this market). Take the litigation support link and skim the Overview | Challenges | Approaches | Benefits pages for a pretty good idea of what Legal Inc offers.

Catching up with KPMG

Part of the function of the e-Disclosure Information Project is to keep up with what the providers of software and services are doing. Given my emphasis on the human aspects of this business (which recurs in this blog and elsewhere in the form of questions like “Would you trust them with your client’s data? Do you like them?”) it is important to keep in touch by going in to see providers or welcoming them out here in Oxford. Since I neither buy nor directly recommend anything, these sessions are free of sales pitches, save in the subliminal and low-key sense that there is a mutual interest in sharing information.

I always seem to have a backlog, both of outstanding invitations and of writing about them. That reflects the balance between things I do directly for the Project’s sponsors, the wider objective informational aspects, the range of material which has to be read from the various jurisdictions in which discovery takes place, and the fact that there is always a conference organiser bullying for a set of slides.

KPMG comes to mind every day for the wholly obscure reason that my coffee cup sits on a tile which was the 1993 Christmas present from KPMG Forensic Accounting. It is functional as a mat, albeit that it shows a 1994 calendar. Like KPMG itself, it can claim longevity in a market which is full of new companies, staffed by people who were still at school in 1994, and in which corporate freebies have a marketing life of about ten minutes. I must have been on their mailing list on the strength of accounting negligence claims which I had run as a litigation partner (including JEB Fasteners v Marks Bloom in 1984 and Al Saudi Banque v Clarke Pixley in 1990, both still cited).

Podcast summarises Equivio benefits

I recorded a podcast last week with Warwick Sharp, Vice President of Marketing and Business Development at Equivio. It is available from Equivio’s home page. I know there is no great technology involved in podcasts, and I might be expected to be jaded about technology anyway having been immersed in it since the dawn of time (that is, the mid-1980s) but I still think it remarkable that I can sit in Oxford,talking to Warwick in Israel via a US telephone meeting system controlled by an organiser in London (Enterprise Technology Management) and that we can be listening to the results ten minutes later.

If I am impressed by some basic telephony and recording, then what to make of Equivio itself? Some of the technology in this market does relatively simple things which are hard to explain. It is dead easy to explain what Equivio does, but one cannot begin to think how it achieves it. Does that matter? Not a lot, frankly, as long as you can satisfy yourself as to the results. Equivio has very quickly gained many very satisfied users.

Autonomy finalises Interwoven acquisition

An overnight press release confirms that Autonomy’s acquisition of Interwoven has been finalised. It has been understandably difficult to get any useful comment out of either of them (I have tried) whilst the transaction was awaiting the formal approvals necessary to close it.

For those who have invested in Interwoven’s content management applications, it will be reassuring to read that “Autonomy is committed to the on-going development and support of Interwoven’s products and solutions in line with all currently published Interwoven roadmaps.”

What interests my readers is the hosted document review platform Discovery Mining, which Interwoven itself only acquired during 2008. Of this, Anthony Bettencourt, CEO of Autonomy Interwoven, says:

For Interwoven’s Discovery Mining customers, Autonomy offers the most complete EDRM solution on a single technology platform…. We will bring together the best aspects of Discovery Mining and Zantaz Introspect to meet your current and future processing, review and production needs. Autonomy has 6 data centers with 6,000 servers, and Discovery Mining will now become our West Coast processing center while Boston will remain our East Coast processing center.

That tells us little about actual development of the highly-regarded Discovery Mining application. My informal understanding (which makes logical sense) is that Autonomy’s IDOL engine will be put under Discovery Mining. It is not really clear whether we will see the convergence of Introspect and Discovery Mining into a single product or whether the two applications will be differentiated and aimed at different markets. It would not be surprising if long-term decisions like this have yet to be made.

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The growing importance of metadata preservation in eDiscovery

If UK lawyers do not share the US enthusiasm about the preservation, collection and use of metadata, that is in part because they are not clear what it is and how it might be used. A forthcoming webinar will be a painless way to find out.

Guidance Software is hosting a webinar on Tuesday 24 March called The growing importance of metadata preservation in eDiscovery. As the developers of EnCase eDiscovery, whose function is the collection across corporate networks of discoverable documents and data, Guidance has an obvious interest in the metadata – data about data – which lies in and around the documents which may become evidence.

How TREC can help you evaluate e-discovery investments

H5 and Clearwell Systems are giving a webinar on 19 March about TREC Legal Track’s practical application in evaluating and assessing search and review methods. Why should we in the UK pay attention?

There is a danger in talking to UK audiences about the higher end of US thinking on information retrieval as it applies to litigation. That word “discovery” (which we abandoned ten years ago for no obvious – or, at least, for no good – reason) serves as a flag which says to UK litigators that it is about someone else’s problem. Other assumptions follow – that the output of such thinking will be academic rather than relevant to everyday life, the volumes will be beyond imagining, the language will be impenetrable and so on.

Certainly, there are some more basic problems for UK practitioners. What is this Practice Direction to Part 31 which the judge in Digicel (St Lucia) v Cable & Wireless banged on about? Oh, I see, they say: big case, foreign business, two counsel on each side instructed by major firms – nothing to do with me then. Now, tell me how I get all these e-mails printed quickly so I can start reading them?

Nevertheless, it is no bad thing to make yourself aware of the thinking in US circles. It is not that we will be in two years where they are now, but that if we watch what they do, we may avoid altogether the worst excesses of US electronic discovery.

Law Society Seminar – Disclosure – the risks after Hedrich

I spoke yesterday at a seminar organised by the Law Society and sponsored by Legal Inc and Millnet. The theme was as foreshadowed in my article Law Society Disclosure Seminar in London and was implicit in the name I gave it: Disclosure – the risks after Hedrich.

The title referred to Disclosure rather than e-Disclosure because the electronic side to this subject is servant to the primary obligation to give disclosure of documents under Part 31 CPR. It referred to Hedrich because although the solicitors in Hedrich v Standard Bank London were found not to have been negligent, and beat off the wasted costs application brought against them, I am not sure I would count it much of a victory to have had to come off the record in mid-trial and then go all the way to the Court of Appeal to fight off the claim that my failure to spot my clients’ disclosure failings had caused loss (and how) to the other party.

Guidance Software Q4 results – a guide to the wider market?

Guidance Software, Inc., which is amongst the sponsors of the e-Disclosure Information Project, has posted Q4 2008 results which are its best quarter’s results in its history, with revenue of $25.2 million. CEO Victor Limongelli was on bullish form in an analysts’ discussion, whilst retaining a sense of caution wholly appropriate to the uncertainty of the times.

Guidance’s results may be a straw in the wind, an indicator of the way things are going. I say that because its market is up at the front of the process which ends in a discovery exercise, a regulatory inquiry or an internal investigation. If you are in mid-case, then you need a review application. If you are starting down that trail, you are collecting data, probably with Guidance’s forensic tools. If you are a large company which thinks you are going to face a need for collections in the near future, then you are buying Guidance’s EnCase eDiscovery or something else whose purpose is anticipatory rather than merely reactive. The report to which I point you above sets out the numbers of Q4 sales relative to previous periods, as well as the interesting statistic that Guidance taught 25% more students how to use its products in 2008 than in 2007.

Law Society Disclosure Seminar in London

I am presenting a two hour seminar in London next Monday 9 March under the auspices of the Law Society.

Sponsored by Legal Inc and Millnet, both well-known suppliers of electronic disclosure solutions, this is a nuts-and-bolts review of everything from cases to rules, from a survey of the problems to a look at solutions, from points of detail to a review of the wider context. It includes a look at some applications.

The title of the seminar is Disclosure – the risks after Hedrich. Most of it is about electronic disclosure, but that is because most documents now in existence were created electronically, still exist electronically and therefore ought to be disclosed electronically – that is, their electronic existence should be disclosed even if it is not practical or cost-effective to handle or exchange them electronically.

As the sun sinks slowly in the West we say farewell to LegalTech – or do we?

You are all too young to remember the clichéd ending to those American travel documentaries which always ended with the sun sinking slowly in the West. So am I, despite being old enough to remember telexes and carbon paper as the must-have office equipment. The expression lives on, in the UK at least, because of the Peter Sellers parody “Balham – Gateway to the South”, which itself dates from 1964 – a cliché kept alive by a parody which is itself too old for most to remember.

My photograph was taken on the Queensboro Bridge as we left LegalTech for JFK this year, made possible by the generous windows of the large black limousine which Nigel Murray had commandeered at a good rate with a degree of resource doubtless acquired in his army years. This combination of clichés, parodies, sunsets, New York and LegalTech was brought to mind by a slight sense in some quarters that this Leviathan of a show may have had its day.

Light relief at LegalTech

I occasionally like, at the end of the week, to write about things which are not directly related to e-discovery or are, at least, aimed at the lighter side. Charles Christian has saved me the trouble this week with an article which reproduces a photograph of mine taken at Legal Inc’s panel at LegalTech, which he moderated. Jolly sporting of him in the circumstances, I would say.

He also links to a page of photographs which I took at the same session in which I supplement my report on what was actually covered with what might have been said instead.

The captions will not necessarily be meaningful to all. You need to read my report on the session to understand why the whole panel might decide simultaneously to look the other way. The picture of a man apparently telling an after-dinner joke about a solicitor being unable to find documents on a CD means a little more if you know both that Hedrich v Standard Bank London involved exactly that level of technical competence and that Sanjay Bhandari of Ernst & Young’s Forensic e-Disclosure team Services considered a career as a stand-up comedian before opting for the law.  The two gentlemen dominating the doorway are Brian Stuart and Tyrone Edward of E&Y.

This kind of hyperlink tennis – me pointing you to an article by Charles which refers to an article by me about him – does not mean I have run out of things to say. I just like a break every now and then, as no doubt you do.

I was in fact going to write a piece called I never see the sodding kerb till its way too late – about Bat out of Hell, MeatLoaf’s elegiac commentary on the fate of the lawyers in the Fannie Mae Litigation and Hedrich, with a side-note on Mondegreens – but that can wait.

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Autonomy panel at LegalTech points to proactive clients – and lawyers

Panel sessions at LegalTech and other conferences combine the best of all worlds so far as I am concerned. The burden is distributed – the moderator has to have a plan and the ability to herd the speakers through it, and those on the panel have to have an agreement as to who is going to cover what, but you don’t have to prepare slides a month in advance nor stand alone under the spotlight hoping that the words sound as good live as they did four weeks ago in the seclusion of your office.

There is enough structure but also room for spontaneity as the discussion takes turns which were not on the formal agenda and, as long as the moderator is good enough to haul you back to the advertised programme, they can be fun to do – assuming, of course, that your fellow-panellists  have something useful to say.

There was no problem on that score with the two panels which I did for Autonomy at LegalTech in New York earlier this month. The programme was the same for both of them. Carter Hopkins, in-house counsel at McAfee, and I were on both of them, but the third player in one was Florinda Baldridge, Global head of Litigation Support at Fulbright & Jaworski and at the other was Laurie Weiss, co-head of Fulbright’s E-Discovery and Information Management Practice Group. Deborah Baron, VP Legal & Compliance at Autonomy, Inc. was the able moderator.

Trilantic panel explores international e-Discovery initiatives at LegalTech

Not much changes at LegalTech from year to year. Sure, the trends come and go – “the move to the left”, Twitter, and “Please look at my CV” being this year’s big things – but for the most part, the same booths, the same faces and the same routines turn up every year.

One discernible change, however, is the interest in what is happening in other jurisdictions. “Abroad” does not rank high in US consciousness. We mocked George Bush when he asked a Welsh singer which state Wales was in, but most Americans, I think, would just wonder why anyone would care which state Wales is in. Sarah Palin thought Africa was a country, but no-one seemed seriously to question whether her foreign experience – a fly-by of some US bases, a refuelling stop in Ireland and a holiday in Mexico  – was adequate for a vice-presidential candidate. In the e-discovery world, most Americans see Europe as a cross between a modest museum and a commercial colony full of obstructive civil servants obsessed with data privacy. For years, the value of the dollar and a terror of terror kept them all at home.

You do not see this until you go to the US. Most of the Americans I know well have a well-rounded world view but that, I now realise, is because I meet most of them outside the US – they self-classify themselves as people who know of the world outside America because that is where I come across them. The insular ones – including, unfortunately, those who make political and commercial policy – stay at home. This matters because the US is still the commercial powerhouse of the world – no-one in America cares, frankly, what Gordon Brown thinks about America, but it does matter what America knows, or thinks it knows, about the rest of the world.

Legal Inc panel at LegalTech lives up to its billing

Litigation support providers from the relatively small UK market  made a good showing at LegalTech in New York this year. Amongst them was Legal Inc who hosted a panel of luminaries moderated by Charles Christian of Legal Technology Insider. LTi now has an American Edition, compounding the sense that the UK has something to contribute to the US legal technology scene.

The Legal Inc panel consisted of Sanjay Bhandari of Ernst & Young, Matthew Davis of Lovells and Andrew Haslam of Legal Inc, with the US represented by Peter Cladouhos of Paul, Hastings, Janofsky & Walker LLP.

The advertised purpose of the panel was to draw attention to some of the pitfalls and dangers inherent within electronic disclosure that can ensnare the un-prepared, and to explain how preparing for, and meeting the demands of, electronic disclosure can be scaled for large, mid-sized and even small organisations. The UK has some relevant case law at last and that, coupled with a planned EDD questionnaire  and increased judicial interest in the time- and costs-savings, suggests that the ability to handle documents and data electronically is permeating down to smaller organisations and more everyday cases.

Lisa Burton of Legal Inc introduces the Panel

Peter Cladouhos, Sanjay Bhandari, Matt Davis, Andrew Haslam, Charles Christian

E-Disclosure Taster Menu in Bristol

I went down to Bristol last week with a group of electronic disclosure suppliers at the invitation of the Western Chancery & Commercial Bar Association. The aim, as in Birmingham last year, was not just to talk about electronic disclosure, but to illustrate it by showing and describing a range of applications and services

Bristol used to be Britain’s second city. In the 18th Century it grew prosperous on the triangular trade which took cloth and iron goods to Africa, slaves to America and tobacco, and sugar and rum back to Bristol. In 1841 the Great Western Railway connected it to London and, in an early example of joined-up commerce, you could travel on GWR trains and GWR ships from London to New York. Its relative prosperity declined as other places boomed and as different industries – ship-building, tobacco, cotton – had their heyday and fell away. There is more industry in the region than one sees from the M4 – I flew over the Severn Estuary on my way in from New York at dawn a couple of weeks ago and noted the miles of industrial zones from Avonmouth Docks down towards Bristol.

All that industry, together with property-related work from the West – Bristol is the first place of any size as you come up from Cornwall or out of Wales – has supported the growth of a strong legal and professional services business. Every other legal magazine in the late 1980s seemed to profile Bristol. Its population of around 400,000 makes it now Britain’s tenth city preceded by London, Birmingham, Leeds, Glasgow, Sheffield, Bradford, Liverpool, Edinburgh and Manchester. It can take as little as 90 minutes to get to London by train.  There are some large barristers’ chambers in Bristol and one does not get the impression that work is in short supply. Bristol is one of ten cities in Britain with a Mercantile Court, that is, a court with a specialist commercial list and judge or judges ticketed to hear mercantile cases.

All very interesting you may say, but this site is meant to be an information resource on electronic disclosure, not a local history, travel guide or Chamber of Commerce directory. Indeed, but disclosure comes with litigation; litigation follows industry and business; and the ability to win commercial litigation work from any region depends on the quality of local law firms and chambers, and on their ability to stop the work from heading to London. It ought to be possible, in fact, for the combination of legal skills, good transport links and an efficient Mercantile Court not just to stem the flow to London but to reverse it. The sixty or so barristers and solicitors who turned out to listen to us presumably want to draw work into their region.

Judge Facciola LegalTech messages are for UK as well as US lawyers

There was something almost surreal about the discovery that the LegalTech organisers had failed to record US Magistrate Judge John Facciola’s keynote speech, given that Facciola regularly delivers Opinions castigating parties either for faulty decisions about technology or for technological incompetence. Did someone decide “Nah. It’s only that Italian guy – let’s not bother” or did someone press the wrong button on the tape recorder? Whatever the cause, it is a pity. The speech, like many of John Facciola’s Opinions, should be compulsory listening for lawyers and judges, and as much on the UK side of the Atlantic as on his.

The speech was introduced by Neil Aresty of Legal Computer Solutions, Inc. Aresty made reference to the “Christmas Eve decision” in Covad Communications v Revonet. A paragraph from that decision will suffice to set the scene and to show why Judge Facciola strikes a chord in the UK. Speaking of an archaic form of document request which ignored the last 40 years of technological development, he said:

“While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Collections trainees seek Guidance on civil e-discovery

One of the benefits of being linked to the companies who sponsor the e-Disclosure Information Project is the opportunity to talk to those who work for them. These are the people who are out meeting with and working with the users, both lawyers and corporate clients, and it is in part from these conversations that I keep in touch with what is happening. They may, flatteringly enough, have called me to ask for my view, but I generally get as much as I give in these discussions.

Parallel views from across the Atlantic

The respected e-discovery commentator Tom O’Connor has published his initial report on LegalTech on his blog, with the title The Big Takeaway from LegalTech New York. His patch in the US e-discovery scene roughly parallels mine in the UK. We did a panel together at LegalTech (see How safe is safe harbor?) and we are both involved with e-Disclosure Information Project sponsor Anacomp/CaseLogistix.

Tom’s main theme is the growing realisation of the importance of the clients’ data at the left hand (information management) end of the EDRM diagram, and the links between content management and electronic discovery. His comment is actually about the lack of such realisation by lawyers, despite the fact that clients and suppliers are moving there fast – Autonomy’s pending acquisition of Interwoven is clearly founded in part on this realisation.

Tom rightly ties this assessment of the lawyers’ slowness to grasp the point to Judge Facciola’s speech, which remarked on the stubborn refusal of lawyers to accept that technology must be understood by those who purport to conduct litigation. I will shortly put up my own report of Judge Facciola’s speech.

The key, in the US and in the UK, is education. Clients, courts and justice itself are badly served for as long as lawyers refuse to accept that handling electronic documents requires a modicum of knowledge about the subject.

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Kazeon to host judicial e-discovery webinar

I have yet to write up the tremendous speech made by US Magistrate Judge John Facciola at LegalTech in New York last week. My excuse, if such be needed, is that it contained so much of importance to anyone practising in any common law civil jurisdiction that it will take some time to capture what he said. For some unaccountable reason, the organisers failed to record it, making it the more important to write it up.

The influence of a judicial perspective on any aspect of case management is not to be under-rated, and this applies more to electronic discovery than to anything else. One of the issues we have in the UK, for example, is one of consistency of outcome – parties do not know what to expect from the judge and so cannot negotiate about the scope of disclosure within a known framework.

US judges are more willing to discuss publicly what they expect from parties, probabaly because they are taught about it and have more exposure to it than UK judges. Kazeon, who provide software and services for corporations, legal services providers and law firms to search for, retrieve and analyse data, has a webinar coming up at which the speakers include two judges.

How safe is safe harbor?

I spoke on safe harbor on a panel at LegalTech sponsored and led by LDSI. Does it give as much protection as its proponents aver? Why is Europe so concerned about data privacy anyway?

It is a beguiling expression, safe harbor. You picture small boats rocking gently in the sunlight behind a stout sea wall whilst the storms rage beyond. Your precious cargo of data shipped from Spain or Italy is protected from the threatening clouds marked “SEC” and “IRS” and can be processed and reviewed in peace by your trusty crew. European data controllers can sleep peacefully at night confident that they are protected from marauding information commissioners and angry data subjects.

Such is the appeal of the expression “safe harbor” that America started using it simultaneously for more than one completely different concept. One is the registration mechanism thrashed out between the European Commission and the US Department of Commerce in 2000 to mitigate the commercial impact for US companies of the EU Directive 95/46/EU of 1995 on the Processing of Personal Data. Another protects ISPs from copyright infringements by their users. The expression also occurs in Evidence Rule 510 to do with waiver of privilege. This article relates to data privacy.

LegalTech lessons for lawyers from extinct species

Only one practising UK commercial lawyer came to LegalTech in New York. Recession hit the litigation support industry before our eyes. One of the recurring themes there was that the clients are taking discovery in house.  Down the road we saw some other extinct species

As if LegalTech itself were not enough, Sunday, my first full day back from New York, lasted for 24 hours, thanks to disrupted sleep patterns, a full InBox and a five hour meeting discussing potential discovery developments in Australia and AsiaPac.

You know better by now, I think, than to expect a dutiful account of LegalTech. You get from me little in the way of faithful reports of worthy sessions, no deep market analysis, no breathless interviews with industry leaders. Others, I know, sit on the special pews reserved for bloggers and have their reports filed before the speaker has made it to the bar. I got to few sessions, although I did turn up, I think, to all those I was booked to speak at. There is no shortage of industry leaders to talk to – you bump into CEOs in corridors or go up to their eyries above cloud level at the Warwick Hotel – but journalistic scoops are not really my style and I am content to wait for the press releases. I am into broader sweeps than the last big sale or the next major release.

Legal Technology Awards 2009

I went to the Legal Technology Awards last night at the kind invitation of Nigel Murray of Trilantic. Nigel disappointingly, turned up in black tie and not the lycra cycling gear which we had hoped to see (read Murray to cycle across the Channel if you find this reference obscure).

Trilantic emerged as Highly Commended in the category Electronic Disclosure Support / Service Provider of the year in this, its third year of being short-listed. The category winners were Merrill Legal Solutions.

Welcome to Equivio as new Project sponsor

I am delighted to welcome Equivio as a new sponsor of the e-Disclosure Information Project. As I wrote in November (see New integration and new web site for Equivio) I met CEO Amir Milo at the Masters Conference in Washington. Equivio’s name was already a familiar one, but that meeting and a subsequent read-through of Equivio’s web site emphasised why Equivio is subliminally omnipresent in the data management world.

If, as I do, you spend your time explaining to lawyers, judges and corporates why technology must be used to reduce vast volumes of data and documents to manageable proportions, you learn three basic propositions – rely on illuminating snapshots not lengthy explanations, focus on the things which equate directly to the user’s own functions, and emphasise the benefits of using technology and not just the risks of not doing so. Equivio’s web site does just that, crisply and clearly.

OutIndex releases E-Discovery engine

OutIndex, the electronic discovery software company has added another string to its bow with the release of three Microsoft .NET components to allow others to build their own e-discovery applications.

Between them, the three components provide the tools for extracting metadata, searching data and printing electronic documents and e-mail messages to .TIFF or .PDF. These are the same primary components as those which OutIndex uses in its main processing system. OutIndex’s increasingly informative web site includes a page on its E-Discovery Engine as well as the rest of its widely-scaled product range, from its flagship application OutIndex E-Discovery down to its desk-top application eDiscoveryXpress for in-house processing.

Plenty to write about but no time to write

I had a patch recently when I had no time to write for a few days. Someone sent me a message, not exactly complaining, but making it clear that my apparent dereliction of duty had been noticed. It is not in fact a duty, or does not feel like one, and there is no shortage of things to write about. There is plenty else going on as well, however, and I cannot simultaneously do things and write about them.

Besides, the subject-matter of the article which sat at the top of the blog for a few days warranted the extra exposure before the next one took its place. It is called Fannie Mae – be careful what you agree to with e-discovery orders and concerned the lawyer in the US Fannie Mae litigation who agreed on behalf of his clients to discovery obligations which cost them $6 million (9% of their turnover). His clients were not even a party to the litigation. The outcome ought to suggest to any lawyer involved in disclosure applications that it might be helpful to scope a project before committing your clients to it. It is a suggestion as useful in the Birmingham Mercantile Court as in Washington D.C.

Autonomy to buy Interwoven

I am not much into instant journalism, but it is nevertheless good to be able to report on the big stories as they happen. Just my luck, then, to be stuck on a train with a day full of back-to-back meetings ahead of me when my InBox started filling up with messages about Autonomy’s agreement to acquire Interwoven.

Both are sponsors of the e-Disclosure Information Project, and both are big players in the legal information world for reasons well beyond their respective interests in litigation discovery – Autonomy owns the review platform Introspect and Interwoven acquired Discovery Mining last year – but much of the combined 20,000 user base involves wider information management, not least in law firms – Interwoven alone has 1,200 large law firm customers.

Welcome to LDSI as sponsor

You will have noticed a new logo on these pages as LDSI joins the list of sponsors of the e-Disclosure Information Project.

LDSI is a full-service provider of a wide range of solutions for handling documents for litigation, regulatory and similar purposes. It has featured before in these pages following my visits to its New York and London operations, both of which impressed with their attention to the secure progress of documents from first arrival through to delivery to the client, and to the support on offer thereafter.

Epiq opens in Brussels

Epiq Systems, Inc. have opened an office in Brussels to provide support for clients involved in pan-European and global litigation and regulatory investigations. Epiq is best known for its DocuMatrix review platform and for corporate insolvency, as well as for litigation work.

An Epiq team will be permanently based in Brussels which, as International Managing Director Greg Wildisen put it, is “in the heart of the European Union and alongside policy-making institutions”.