I avoid lists, on the whole. Apart from the fact that one can sense the readers bleeding away, there is always the risk of omitting somebody or something, or of appearing to give an unintended priority to one thing rather than another.
Big conferences raise particular issues. There is no point in itemising every event – I might as well simply refer you to the published agenda. Perhaps I should refer only to those panels in which I am personally involved, but that seems a trifle egocentric. I might limit the selection to those companies with whom I have a personal or business connection, but that potentially omits reference to a major player on a significant subject. Is my role simply to promote those who are good enough to sponsor what I do, or does that undermine the objectivity which is, I hope, what keeps the readership and the Twitter followers rising?
Looking through the programme for IQPC’s Information Governance and eDisclosure Summit, taking place in London this week, I can reconcile these various conflicts by reliance on the fact that the sponsors of the eDisclosure Information Project are representative of the broader range of providers, and that the subjects which they cover give a correspondingly representative picture of what matters in a UK-centric picture of electronic disclosure. Read the rest of this entry »
Amongst the many interesting contributors to the IQPC Information Governance and eDisclosure Summit taking place in London from 14 to 16 May is Allison Stanton, Director of eDiscovery, FOIA and Records for the Civil Division of the US Department of Justice. She is taking part in a keynote panel about regulatory obligations, enforcement priorities and expectations along with Dean Gonsowski of Recommind and Keith Foggon of the Financial Conduct Authority (I don’t usually link to the web sites of government agencies, but this one is new and you might want to see what they do).
Allison Stanton is a reason on her own for attending this event, far and away the most interesting and lucid speaker on this subject from any regulator. She has been interviewed by Metropolitan Corporate Counsel, something I missed when it was published in February. Here is a link to their article DOJ Director Talks About Investigations and eDiscovery Technology.
The most interesting section in the interview is the one about costs, in which Allison Stanton makes it clear that whilst the DOJ’s primary driver is its “core mission to protect the American public”, it is willing to listen to companies who are able to explain “in nuts-and-bolts terms” the costs and burdens which they anticipate in complying with a regulatory demand. One would not mistake anything she says as implying that the DOJ will compromise on its core mission, but the invitation is there to open discussions around cost and burden. Read the rest of this entry »
I was in a US airport earlier this week (don’t ask me which – they all look the same after a while) and heard an announcement about facilities available for US service people – somewhere to sit and eat, with a place for children and other comforts. It was delivered in that rather sonorous tone which Americans use for everything from state funerals to insurance advertisements (think Sam the Eagle as voiced by Frank Oz), and ended with the words “We salute you”. That, coupled with things like preferential queuing arrangements for service people, reminded me that the US is more overtly appreciative than the British of those who come home. We demonstrate immense respect for those who die – my home county, Oxfordshire, is where the bodies are brought to, and hundreds turn out to greet them – but successive UK governments have not been good to those who have been wounded while fighting for their country.
Those who know Nigel Murray of Huron Legal (that is, almost anyone engaged in eDisclosure/eDiscovery) will know that he surprised us all some years ago by putting his less-than-sylph-like frame through a rigourous training routine as preparation for a long cycle ride in support of the charity Help for Heroes, whose mission is to support those who are injured in body or mind whilst on active service. Read the rest of this entry »
Consistent with my condensing approach to current events, I give a brief summary of some of the US articles which have ended up in my Evernote store while my attention has been on the roll-out of the Jackson reforms. Rule changes and predictive coding remain at the top of the agenda. The best service I can do is simply to point to some of them.
Judge Peck’s refusal to recuse in Da Silva Moore remains after appeal
The title of this LTN article, Judge Peck’s Refusal to Recuse in ‘Da Silva Moore’ Remains After Appeal says all you need to know. A crisp opinion from the US Court of Appeals finally disposes of the recusal sideshow to the predictive coding sideshow, leaving the parties free at last to focus on the merits of the case. The LTN article helpfully includes links to some of the articles which told the story as it unfolded.
How good is your predictive coding poker face?
A two-part article by Matthew Nelson of Symantec introduces segments of video in which Maura Grossman, Craig Ball, Ralph Losey and Matthew Nelson discuss various aspects of the use of predictive coding by reference to a poker game. The articles are called How Good is Your Predictive Coding Poker Face? Part One and Part Two. These are authoritative speakers and this is an interesting way of serving up some of the issues and recommending approaches to them.
Technology assisted review: unlocking the black box
A helpful article by Randall Burrows of Xerox Litigation Services is headed The next step for technology assisted review: unlocking the black box. Its subtitle, A step-by-step approach to establishing a more defensible methodology, is fulfilled by a straightforward guide to the support which a lawyer can bring to bear on the validation of his or her approach to the use of technology assisted review and, by implication, to challenging the approach taken by opponents. Read the rest of this entry »
Charles Christian’s Legal IT Insider has been hosting a discussion about the likely reaction of case managing judges to the proposed use of technology like predictive coding. The starting point is a thoughtful article by Drew Lewis, eDiscovery Counsel of Recommind called Best case scenario – the impact of the Jackson reforms, and Andrew Haslam, Jonathan Maas of Ernst & Young and I have joined in with comments.
However close becomes the alignment of the procedural rules in the US and in England and Wales, I suspect that we in the UK will never really get our heads round the US idea that one needs judicial blessing (from some court, somewhere) before doing anything new or different. We are not talking here of formal precedent, but of day-to-day case management of the kind which is rarely reported in England and Wales anyway.
The problem with phrases like “courts in the UK are currently not open to predictive coding”, apart from being wrong, is that they have the potential to stifle imaginative approaches to bringing costs within the bounds of proportionality. The courts are “open” to any suggestion which achieves this and one must jump on any assertion which might become a self-fulfilling prophecy.
The new rules are to some extent a clean sheet, and give opportunity for the right kind of lawyer and the right kind of judge to set the tone. The 1999 case management rules provided that the court could “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”. If the court can make any order, you can seek any order; if your suggestions point to the most proportionate approach of managing the case, then the court will not be inhibited by the absence of a case report approving of the method.
It is worth drawing attention to the point made by Jonathan Maas – your enthusiasm for agreeing timescales, as well as budgets, is no substitute for knowing what you are talking about. Vince Neicho of Allen & Overy emphasised at Epiq’s recent costs seminar that it is necessary for all interested parties (in the wider sense of the word “interested”, and including the client) to be involved in the discussions which go through into court-approved timetables.
I have a stream of short articles coming. This is just some background noise.
I observed in a tweet last week that I had overlooked the Twitter presence of an interesting legal software development company, Neota Logic. “Might be because you are OCD about eDiscovery” came the prompt response. Although I immediately admitted the charge (or “accepted the compliment”), eDiscovery / eDisclosure is how I earn my living and one need not be obsessive, compulsive or disordered if there is a happy coincidence between the things which interest you and the things which put bread on the table. I call it good fortune myself.
The OCD suggestion gives us another set of initials to add to those nicely caught by this Times law cartoon.
The genius, as well as the authorship, of these cartoons is hereby acknowledged. You can find more here.
There has been quite a lot of it about recently; a high volume of mainstream eDiscovery stuff as well as other aspects of legal practice and justice has given me a long list of things to write about. I have three weeks of conferences coming up, with two in the US bracketing one in London, and it would be good to be shot of some of it before that begins.
A series of relatively short posts follows this one. With that done, I can turn to the the conference preparations and other things which comprise the rest of the pile in front of me.
Jackson – the phoney war
First, however, what has been keeping me busy? Directly or indirectly, the answer to that is “Jackson”. Despite 18 months of thinking time, those responsible for launching the new rules managed to make a complete hash of it. This is not necessarily the fault of the rank and file members of the Rule Committee whose work we are lucky to have (and I don’t say that just because I was at school with one of them and am on friendly terms with another). They were set a near-impossible task by the decision to amalgamate all the changes into one amending act – one can see the tidiness of this in statutory terms, and one can see also that some elements depend on others, but it does impose an immense burden on those charged with the drafting, to say nothing of weight on those who implement and those who must obey the rules.
It was unfortunate that the launch of the rules coincided with other developments which have nothing to do with them, including a brutal attack on Legal Aid and a mindless hacking at the front-line staff in the court and at the Ministry of Justice budgets generally. Read the rest of this entry »
Epiq Systems held an extremely informative seminar on the new costs regime earlier this week. You will find at the end of this post a link to the video made on the day with the strong recommendation that you watch it.
“The thing about Dominic Regan”, somebody once said to me, “is that nearly everything comes down to costs to him”. It was meant as a compliment, and reflected the fact that much of the Civil Procedure Rules, of the case law which exists around it, and of the strategy of litigation, runs sooner or later into questions of costs. There are, of course, litigants for whom expense is no issue, cases which must be fought at any price, and large sections of the rules which regulate aspects of procedure to which costs have no direct relevance. The justice which is set squarely in the opening section of the overriding objective, however, is no justice at all if parties cannot afford it; Lord Justice Jackson’s remit, however widely drawn, was driven by the need to control costs, and the rule changes which are named after him largely reflect that.
Professor Dominic Regan was one of four expert panellists at a seminar organised by technology provider Epiq Systems in London this week. The others were Master Colin Campbell of the Senior Courts Costs Office, costs expert Michael Bacon and Allen & Overy litigation support manager Vince Neicho. The room was packed, and if much of the focus was on eDisclosure, the panel ranged across the wider implications of the new costs regime. The session was led by Epiq’s Saida Joseph. Read the rest of this entry »
The fact that we enjoyed ourselves at the TGCI eDisclosure event in London did not make it any less of a serious forum for discussion. The round-table format, the complete absence of PowerPoint slides, and the invitation to delegates to interrupt as they wished made it an extremely lively and useful exercise.
There are a limited number of ways in which you can organise conferences and seminars aimed at dispensing information and promoting discussion about eDisclosure / eDiscovery. The conventional approach, a series of lectures and panels delivered from a podium or platform to delegates in rows of chairs, is ideal in many ways, particularly when the intention is dispensing information from the few to the many – that is what delegates generally expect, and I am told by someone who organises events across many different sectors that lawyers are not particularly interested in alternative formats – even government delegates look for more imaginative approaches.
I am not being critical here – I have no quarrel with the conventional approach and am rarely an enthusiastic participant in those events where you are divided into tables and given a whiteboard, a set of scenarios and some poor sap who must report back to the conference. One approach I do like, which we are seeing more often, is the “led discussion” where we get down from our platforms, pull our seats into a circle and talk around a subject at the behest of a nominated group leader. Read the rest of this entry »
A tweet last week compared the first few days of the new case and costs management regime with 1939 – the reference was not intended to evoke anything belligerent but that period of uneasy calm known as the Phoney War which followed the formal declarations. We all know that something momentous is happening to those involved in civil proceedings, but until we start getting reports of case management conferences and feedback from the front line (to continue the war analogy) we cannot really tell how it will all play out at a practical level.
For the most part, I have stuck to straightforward recitals of what the rules say, reckoning that the MoJ’s botched launch of the amendments has so obscured the position that people are grateful simply to be pointed to the key provisions – as another tweet said, the MoJ was going to celebrate with a party at a brewery, but could not find anyone to organise it. At a conference this week, I offered delegates the choice between a summary of what the rules say and an analysis of their implications; they went for the summary, leaving it to Senior Master Whitaker to delve more deeply into what the changes mean for practitioners and clients at a later session.
It is worth pointing you to some of the events and articles which get more deeply into the implications.
Events from Epiq Systems and Consilio
I have already written about a seminar which Epiq Systems is running on Tuesday 23 April at 8:30am at 60 Cannon Street. Its title is Costs changes to the Civil Procedure Rules: join the debate, and the speakers are Master Colin Campbell, Senior Costs Judge, Michael Bacon, costs lawyer, Vince Neicho, Litigation Support Manager, Allen & Overy and Professor Dominic Regan, adviser to Lord Justice Jackson on costs budgeting. The focus is on the pre-estimates of eDisclosure costs which are required whether or not costs management has been ordered (an important point this, for those confused by the cost management exemptions), on keeping costs down by the use of technology and outsourced review, and on the crossover between the new costs regime and clients’ demands for more imaginative costs structures – the predictability and transparency required by the courts is, of course, much the same as a client wants from its lawyers anyway. Registration for this event is here.
On Wednesday 24 April Consilio is producing a webinar called The eDisclosure Shakeup: CPR 31.5 with Marla Bergman of Goldman Sachs, Garry Bernstein of Consilio and me. As I have written here, the focus is on the value of metrics in approaching costs estimates – if you keep information about past cases (or work with someone who does) then the apparently daunting task of estimating costs so early in the proceedings becomes more feasible. No one (not me, anyway) is saying that it is easy, and many cases will buck all known trends; nevertheless, there is commonality in the components of cases which, if captured, can the used to inform future decisions. Registration for this event is here. Read the rest of this entry »
On Thursday, I joined Terry Harrison of Hobs Legal Docs to give a talk on the eDisclosure aspects of the Jackson reforms at a seminar hosted by The Royal Bank Of Scotland in Manchester.
My real interest in this subject is the opportunity which the rule changes give to law firms and their clients not just to control costs but to make litigation more attractive as a business endeavour. Those who know the rules and who are ready and able to express proportionality arguments in a way which legitimately reduces the volumes of data (“legitimately” meaning in a way which is consistent with professional duty to court and clients) can not only win clients but put themselves in a position to influence the management of the case.
The desultory manner in which the Ministry of Justice has rolled out the Jackson updates has obscured the clear lines laid down by Lord Justice Jackson, requiring me to spend my time trying to clarify what the rules actually say rather than to focus on how they can be used to strategic and tactical advantage. An hour is not long enough to cover it all, and I was pleased to get a message via Twitter afterwards from someone who was present who said that he would like to hear the rest of the story. I will be happy to oblige if asked. Read the rest of this entry »
Whilst this story has Nuix software as its inspiration, the point is a wider one – where do you start when you don’t know where to start on a large collection of data? A combination of software and shoe leather may be needed. And the software and skills may open doors to new practice areas.
I have been focusing on the impact of the Jackson reforms in England and Wales, but the big eDiscovery story of the month has involved a rather different application of a discovery tools and techniques. The focus on court rules and on technology and processes can easily blind us to the importance of data as evidence. Evidence matters (or should matter) as much to investigative journalists as it does to lawyers, and the same technology can be used by both.
The International Consortium of Investigative Journalists (ICIJ) was given anonymously a hard drive containing 260 GB of data including more than 2 million e-mails, as well as Word documents, databases and spreadsheets – as broad a mix of source types as one will find anywhere. Many eDiscovery exercises begin with the question “What have we got here?” - an important point, often overlooked by those who ask simplistically “Why are we don’t just use Google for eDiscovery search”. You need something rather different to investigate this kind of volume of mixed data when you have no idea what it is all about.
The ICIJ turned to Nuix, who provided software licences free of charge to enable investigation of the data. That turned out to include the biggest collection of leaked data in the history of journalism, all relating to financial arrangements of the kind which the rich and powerful use to keep their assets and transactions hidden from view. Government officials, wealthy corporations and individuals, banks and offshore tax advisers all featured, and much more prominently than they would hope.
I am working on some material to add to the Resources section of my web site about the case management and costs management aspects of Jackson. There is, as you would expect, a great deal of comment flying around at the moment and I take this opportunity to point you to some of them.
LexisNexis has just published a sub-site devoted to the subject called LexisNexis on Jackson. In addition to providing links to the main formal documents (as I did recently) it carries four videos designed to show what happens when you fail to prepare for or cooperate with the other side in relation to cost budgeting before the CMC.
The participants are HHJ Simon Brown QC, who did so much on the Birmingham costs pilot, and two solicitors who took part in the pilot, Mark Surguy of Eversheds and Martino Giaquinto of Mills & Reeve. This is an excellent and easily-assimilated way of understanding the implications of the new regime, and an extremely useful supplement to reading the rules themselves (don’t forget to do that).
An article published today in the Law Society Gazette is headed Judges “ill-prepared” for Jackson and presents a pessimistic view of what parties can expect given the paucity of the training given to case managing judges. I take a rather different view. Read the rest of this entry »
Three articles come my way at once, connected by the theme that electronic documents raise management issues in small and medium-size cases and not only in the large ones which tend to hog the limelight. One of the articles comes from the UK and the other two from the US; the principles apply everywhere.
Bringing Babel to the lawyers
The UK article is from Charles Holloway at Millnet and is called Nimrod. The chap allegedly responsible for commissioning the Tower of Babel could serve as the introduction to several eDisclosure / eDiscovery parallels. Charles Holloway refers, subliminally at least, to two of them. One is the launch of the new civil procedure rules, where the clear message intended by Lord Justice Jackson has been undermined by a confused delivery which resembles a site instruction at Babel: we have costs management, heavily qualified by ad hoc exemptions yet still promoted as the default - picture a Greek writing instructions in Babylonian for the benefit of a Latin-speaking project manager to pass on to a Hebrew workforce in Gaelic and you can easily see the relevance of Babel to the rule makers.
We don’t need Babylonian, Latin, Hebrew, Gaelic and the rest to confuse the UK eDisclosure landscape, because we have American. Much of the marketing style, as well as the language, comes direct from the US, and it needs more than a dictionary to convert US eDiscovery concepts into terms which matter to the lawyers who are the potential buyers of eDiscovery software and solutions in the UK. I have done my bit over the years to reduce the language of fear and scale which characterises US eDiscovery marketing, full of talk of terabytes, sanctions, legal holds, requests, privilege logs and all those other things which make US discovery so disproportionately expensive. You cannot wholly blame the marketing people, whose language reflects the reality of the problem they are attempting to solve – in the US. Read the rest of this entry »
A senior clinical negligence barrister suggests that we think positively about the Jackson reforms.
Shortly after the UK Bribery Act passed into law, I took part in a London panel about its implications. At the Q&A session at the end, a solicitor launched into a diatribe about the Act which I interrupted rather roughly. The time for consultation had passed, I said, and the Act had passed into law; there was no point in whining about it or suggesting that things might have been done differently; the object of the panel and its Q&A session was to focus on how to deal with it.
An article by clinical negligence barrister Nigel Poole QC makes similar points about the Jackson reforms and, indeed, draws attention to potential benefits from the changes. His article is headed Singapore Spring – Clinical Negligence Litigation after 1 April 2013, but it has interest beyond that specific area of practice. The Singapore reference is to Lord Justice Jackson’s enthusiasm for the case management regime in that jurisdiction. There had been much grumbling, Jackson said, when the new rules started to bite, but lawyers had come not merely to accept them but to find more work as litigation became more efficient and affordable. Nigel Poole summarises this with the sentence “if the courts give lawyers and experts the hurry up, that might just be good for clients.” Read the rest of this entry »
One of the main differences between the Federal Rules of Civil Procedure and the Civil Procedure Rules of England and Wales is that England and Wales is a costs-shifting jurisdiction by default. That means that the winner can expect to get a significant contribution to litigation costs from the loser. This, theoretically at least, acts as a brake on unnecessary expenditure because all parties have a contingent interest in the others’ costs.
Much of the focus of Lord Justice Jackson’s reforms has been on quantifying and controlling the recoverable costs – parties can spend what they like (as long as they do not run up unnecessary costs for opponents) but are limited in what they can recover if they win. Although the budgetary constraints envisaged by Lord Justice Jackson have been emasculated in part by judges reluctant to sully their hands with questions of costs, eDisclosure costs remain subject to tight control, with parties required to cooperate to limit the scope of disclosure, to agree the tools and techniques to be used and to estimate the costs of managing disclosure (see my recent article Costs management shambles defies parody but case management still has teeth on this).
The US has a more ambivalent approach to costs-shifting, with variations between states and a distinction drawn between lawyer fees and eDiscovery costs. Judge Grimm suggested at Georgetown that we may see moves towards codification of the rules in a way which will put more parties at risk of having to pay their opponents’ costs, including (I assume) eDiscovery costs. Read the rest of this entry »
Nigel Murray, managing director of Huron Legal in London, was the host this week of a discussion and dinner at the Cavalry and Guards club whose purpose was a roundup of LegalTech from a UK perspective. This has become a fairly regular event and a good opportunity for those who went to LegalTech to report back to those who were unable to be there.
The UK contingent at Legaltech was smaller than usual this year. There seems to be no consistent reason why regular attenders gave it a miss: budgetary constraints provide an obvious answer; there may be a sense that the format has little to offer to non-US people (I do not agree, merely surmise that others might think so); anecdote suggests that there is a lot of work on at the moment which, coupled with the shortage of experienced people, may mean that the regulars could not be spared for a week away. It would be fair to say that LegalTech showed little interest in us this year – so far as I could see, the Integreon panel in which I participated with kCura (on the Jackson reforms) and UBIC‘s cross-border session were the only ones which paid any attention to the world beyond US borders.
Nigel Murray, Andrew Haslam of Allvision and I were the only ones present at the Huron evening who had been at LegalTech. Andrew Haslam had with him the draft of his usual roundup article which will appear shortly. Nigel identified some key themes and the rest of us kicked them about. Read the rest of this entry »
There is a lot going on in the eDiscovery / eDisclosure world at the moment, what with new Civil Procedure Rules in England and Wales, and with products, appointments and webinars to write about and conferences to plan for.
There has also been a stream of interesting articles which are worth passing on. I would normally seek to add some value with commentary of my own rather than merely give you hyperlinks, but they come thick and fast, and it seems better to pass them your way whilst they are topical rather than wait for an opportunity to expand on them. Besides, the articles in question have plenty of meat of their own and I do you no great service by adding more.
The subject is pending revisions to the Federal Rules of Civil Procedure, a subject which I have already covered in an article called A new definition of relevance in US eDiscovery? which was itself based on an article by Ralph Losey called Georgetown Part 2: New Rules are Coming! There was a curious lull after that, with relatively few US commentators seizing on two points in particular which seemed to me of significance – the proposed express incorporation of proportionality into Rule 26(b)(1) and planned amendments to Rule 37(e) which aim to clarify the “safe harbor” from sanctions where documents are deleted as a result of a “routine, good faith operation” of computer systems.
The problem (or one of the problems) with these areas is the lack of precision implicit in both. Preservation decisions turn on the “reasonable anticipation” of litigation, and anything involving the word “reasonable” involves a degree of subjectivity. Where a client is contemplating a voluntary but irrevocable decision such as the deletion of data, the average lawyer will err on the side of caution in circumstances where severe sanctions may be invoked against the client. The present wording of Rule 37(e) gives too much scope for “average” lawyers to take refuge in the safe course which urges clients to keep everything “just in case”. “Just in case of what?” the clients might ask. There are circumstances which will clearly warrant sanctions; there are those which equally clearly do not; there are grey areas. The lawyer’s job is to discriminate between them where too many simply give the risk-free advice to keep everything (and take a fee for giving it). Read the rest of this entry »
As it did last year, FTI Technology has commissioned a study by Ari Kaplan called Advice from Counsel Trends that Will Change E-Discovery (and What to Do About Them Now). This is based on interviews with 30 inside counsel with the aim of identifying the most Important forthcoming trends and seeking their guidance as to what is required to face the changes. It makes sense, does it not, if you sell software and services, to find out what your client-base expects – they are, after all, in the front line, and are simultaneously the canaries in the mine and the influencers, able both to predict forthcoming changes and to identify what is needed to meet them.
Ari Kaplan’s reports tends to be among the more influential published during a year – I found myself quoting from his 2012 survey all the way through last year. It would be odd if, having commissioned the survey, FTI do not take notice of its findings, and there is indeed a close connection between the feedback received from inside counsel and the recent developments in FTI’s software and service offerings. The messages, however, apply more widely than to a single provider. Read the rest of this entry »
Here is a list of the 58 blog posts published in January 2013 on my Commentary Blog and Updates Blog. They got 9,464 page views between them.
As mentioned in a recent post, the web site has been smartened up a little as part of a general review. Some old material has gone and there will be new sections, not least about the Jackson Reforms, shortly (seeing the final form of the rules would be a a good start).
A new survey by Epiq Systems throws light on the recurring (and generally unanswerable) question as to the amount of eDiscovery work in the UK and Europe. One cannot assess the actual volumes, but it is helpful to know what large corporations and their lawyers are anticipating.
I get calls occasionally from (mainly US) providers of eDiscovery / eDisclosure software and services who want to know how big the European eDiscovery market is. My usual answer (after making sure that the caller appreciates that the UK and mainland Europe have entirely different systems of law) is that anyone who purports to answer this question is kidding themselves.
Whilst it is possible to identify UK civil litigation trends from figures published annually by the Ministry of Justice, this tells us nothing about the scale of the eDisclosure required – we do not know how many cases reached the formal disclosure stage, how much disclosure was undertaken independently of court timelines, or how big the exercises were. There are no statistics for investigations, whether internal or for regulatory purposes, nor for arbitrations and other forms of dispute resolution. What do we mean by “the European eDiscovery market” anyway, when much of the work is US-led, performed in Europe in order to comply with EU data protection and privacy requirements?
It is helpful, therefore, that Epiq Systems has commissioned a survey of law firms and larger corporates to find out what they are experiencing and (even more usefully) what they anticipate in the foreseeable future.The survey, which you can find here and which is summarised in this press release, points to a significant increase in all the components which comprise an eDisclosure problem – increases in data volumes, more major litigation and regulatory activity and increased difficulties in finding the required data, not least because of the ever-wider range of devices and repositories in which it sits. Read the rest of this entry »
Sometimes one gets the sense of being tangibly at the end of an era – the door is closing and, perhaps, others are opening. I felt like that, quite suddenly, on my way to LegalTech in New York a few days ago as a result of the conjunction of three different sources. One of them involves the year 1599, the end of chivalry and the rise of a new merchant class, and another features dinosaurs and a yellow scooter. Those who have been with me a while are used to apparently random elements coming together in the last reel to reach an eDiscovery conclusion.
Richard Susskind’s Tomorrow’s Lawyers
The door which is closing will leave behind it the traditional law firm structure of partners selling at hourly rates the services of themselves and legions of associates. There is nothing new in this prediction – Professor Richard Susskind has been making it for years, and one of my sources is his latest book, Tomorrow’s Lawyers. The book is addressed to those starting out in the legal profession and to junior partners, and is subtitled An Introduction to Your Future. It restates views expressed in Susskind’s earlier works, especially The End of Lawyers?, sketches out the new legal landscape as he expects it to be, and (most interestingly) looks at the prospects for younger lawyers and at the skills they will need for the new legal landscape.
The points are all familiar ones – Susskind is cheerfully unrepentant about saying the same things for years, not least because time has invariably proved him right. The most specific predictions – about the use of e-mail and websites, and about the use of technology to standardise and commoditise the delivery of services – were once derided but are now part of life. The broader predictions, effectively signalling the end of the traditional law firm model, have always seemed reliable but distant, something on the horizon which lawyers might hope not to reach before retirement. My sense on finishing Tomorrow’s Lawyers is that we can now see the waves crashing on the rocks. We have reached the horizon.
More specifically for litigation departments, the “cottage industry” approach which Susskind derides will die, and probably in 2013. eDiscovery / eDisclosure, the major cost component in many cases, is still about finding the evidence, but has become an exercise in search, in project management, in statistics, in budgets and metrics. The point is not so much that lawyers are unused to this, but that technology, and those who know how to use it, can do it better, more cheaply and to a higher quality – you will perhaps recognise a well-known Susskind paragraph in this. The quality and accuracy of such tools increases yearly; just as significantly, the rise of managed document review providers offers the transparency and predictability of time and cost which (not coincidentally) is the aim of both courts and clients. It is not that lawyers cannot compete with these new business models but that that few of them seem willing to try.
I am taking part in a panel discussion at LegalTech next week with Integreon and kCura on the subject of the Jackson Reforms. We will emphasise that the rule changes generally reflect duties to which lawyers are subject anyway, and in any jurisdiction, to find the best tools and techniques for conducting disclosure / eDiscovery proportionally.
I pointed yesterday to an observation by Mr Justice Ramsey that there will be “a few sweaty palms” as lawyers face the forthcoming changes to the UK’s civil procedure rules. Collectively known as “the Jackson Reforms” after Lord Justice Jackson who inspired most of them, they have also acquired the nickname “the Big Bang” thanks to a decision to roll out all the changes together.
This seemed a mistake to me when it was first announced 18 months ago, and it seems even more misguided now that we are a few weeks away from the implementation date and have yet to see the final form of the rules. I wrote about that in my article Uncertainty means expense as we wait for the Jackson rules.
The combination of fear and heightened expectations which results from this obscures the fact that the rule changes relevant to the disclosure aspects of case management are radical only in that both judges and lawyers have ignored the rules as they stand – a point which Lord Justice Jackson emphasised in his Review of Litigation Costs. They also reflect what both clients and courts should expect anyway. Read the rest of this entry »
Step-by-step, predictive coding is gaining the acceptance in US litigation which was anticipated for it during last year. The latest advance is that the judge in Global Aerospace Inc. et al., v. Landow Aviation, L.P. dba Dulles Jet Center, et al who approved the defendant’s use of predictive coding has now gone on to approve its results. In a jurisdiction which is driven to the point of obsession by precedent in the broadest sense of that word, almost to the exclusion of first principles, this matters very much.
A lot of what I write suggests to law firms that their clients’ interests and, indeed, their own, may lie in delegating much of their eDiscovery / eDisclosure function to others. I usually link this to Professor Richard Susskind’s observation about how law firms must find ways of working which are quicker, cheaper, more efficient or to a higher quality “using different and new methods of working”.
Outsourcing, in its various guises, must be considered in this context, whether that be by using software which is hosted and managed by someone else or by taking advantage of the many (and competing) managed review services which can often perform this most expensive component of eDiscovery / eDisclosure to a quality and at a cost which few law firms can match.
I am careful always to make it clear that outsourcing is not the answer in every case, but is something which should be considered alongside purely internal solutions. As the UK moves towards costs budgeting and enforced proportionality, the ability to offer alternative ways of giving disclosure becomes more important. You do not need to be driven by the rules of any one jurisdiction to want to be able to offer clients and the court a range of options. Read the rest of this entry »
I am increasingly being asked to talk about predictive coding in the UK, and the subject warrants an article of its own. I will come to that shortly, but meanwhile point you to two articles published in the last few days which, although American in origin, serve as an introduction to those new to the subject.
Predictive coding is essentially a learning technology. What predictive coding is able to do is get input from a human being, who reviews samples of documents and marks them as relevant or not, and then those decisions are input into the predictive coding engine, which is able to generalize those decisions across the entire collection.
In other words, a relatively small amount of input at the beginning of the process is used to form provisional judgments about the rest, with obvious potential for saving time and money. The “learning” is continuous, in that the system refines its conclusions as the results are validated – and it is vital to appreciate that validation is a key component of predictive coding technology.
The article goes on to summarise the US case Global Aerospace, Inc., et al. v. Landow Aviation whose messages about the early reduction of volumes, and thence time and cost, are timely ones as the UK faces a new regime of court-led control and budgets. One of the points arising from the article is the absence of judicial guidance which, unsurprisingly, is the question I am asked most often when the subject comes up in the UK. Read the rest of this entry »
All surveys, in any industry, have the aim of promoting the company which commissions them – why else would they bother? A new survey about document retention beliefs and practices – and the gulf between them – is, however, valuable for all of us and not just for Symantec who did the work.
Symantec has software solutions which extend across the full range of information management problems, from e-mail archiving through to eDiscovery / eDisclosure. It is well placed, therefore, to conduct a survey examining how enterprises manage their electronically stored information and prepare to meet eDiscovery obligations.
eDiscovery is not, of course, the only reason why a company needs to keep its information under control. Those with an eDiscovery focus (not Symantec, who often make this point) tend to overlook that much information has a business purpose or is kept to meet a statutory regulatory obligation, and that such information is of little value if no one can find it and if there is no discrimination between that which is useful and that which is not. Read the rest of this entry »
Commentators in other jurisdictions, me included, have expressed wonder at the procedural hurdles which US case law developments in the past six years have placed in the way of parties preparing to give discovery. We don’t criticise the need to do the job properly – to preserve that which ought to be preserved and to collect it in a manner which is capable of being defended in court – but the procedures as they have developed appear to have paid more attention to formal niceties than to the actual needs of most cases. Requirements developed to meet the worst cases seem to have been applied to every case, regardless of the degree of actual risk that important documents will be missed or destroyed.
There are signs, perhaps, that US courts are stepping back from positions which are now seen as major contributors to wasted expense, as rule-makers and judges rethink the balance between cost and utility and consider how to control (and if necessary punish) those whose conduct puts really does put justice at risk without burdening every party to every case with expensive processes which are disproportionate to the value of the case and the risk of injustice.
Some of the things said at the Georgetown Advanced eDiscovery Institute CLE in December give clues as to the thinking which is going on as to the future. I will come back to that in another articlee (or two) but it is worth reviewing where the US has got to so far and to consider how parties can minimise the risk of getting it wrong. One of the specific issues is the extent to which it is prudent for companies to collect their own documents and data.
This is one of the subjects covered by Daniel Lim, VP and General Counsel of Guidance Software, in an article called Rolling the Dice on Legal Hold and Self-Collection: Not Worth the Risk on the Corporate Counsel web site. The article gives a good summary of the present state of the US law relating to legal hold obligations for civil proceedings and to self-collection, that is, the collection of relevant documents and data by the party itself rather than by experts directed by lawyers. Although the article’s focus is on US civil proceedings, much of it applies in other jurisdictions. Read the rest of this entry »
Here is a list of my blog posts of December 2012 on eDiscovery / eDisclosure and related matters. After several months of experiments, I have abandoned my Google Plus page for my short eDiscovery posts in favour of a second WordPress blog, called eDisclosure Information Project Updates. This blog has its own email sign-up for those who want to be tipped off about new posts.
Google Plus has really good SEO (Search Engine Optimisation), and the existing posts will remain there. Google’s clunky interface was one push factor; another was the feeling of being at a party which everyone else had skipped, despite the tiresome G+ focus on “community” and other things which Facebook does much better if you like that sort of thing – great for florists, car mechanics and High Street solicitors, but of no interest to me.
The new WordPress blog started delivering good SEO almost at once. I can extend its features, adjust its appearance and be sure that it will not acquire some tedious new “feature” next week because a hyperactive geek at Google has some syndrome which requires constant change for its own sake.
I have also abandoned the practice of summarising the short posts, giving a list like the one below instead. The SEO value of the summaries and the links from them was not commensurate with the very significant input which they required. I am not remotely interested in all the detailed “campaign” stats which marketing people get so hung up on. One thing matters to me – how many people go to my articles and thus past my sponsors’ logos? The average number of page views last year, weekends and holidays included, was 224 per day.
The list below, and the parallel one on my web site, are part of the web of cross-links (Twitter and LinkedIn provide the rest) which ensure that no-one can do much research on eDisclosure / eDiscovery without finding something by me.
December was a short month – I was away on holiday for a week quite apart from the long Christmas and New Year break. The volume of interesting material now being published by others is such that there is always a queue – that is, a stockpile of subjects, some already written about, which I hold back to avoid swamping the readers. Apart from time-critical things like webinar dates, I don’t think promptness matters too much – if it is important, it will still be important next week. Read the rest of this entry »
The very name “Big Data” clearly implies that very much more information is being collected about us, and that has obvious implications both for privacy (where both individuals and law impose restrictions on what might be kept and used) and for eDiscovery, whose nature implies the need to collect as much information as possible.
Much of the Big Data which threatens our privacy is collected by governments, over whom we have no practical supervision, and much lies with big corporations (and is pooled between them) in ways and for purposes which we can only guess at. If one leaves on one side (because it is intractible, not because it is right) the organisations for whom the collection of such data is the business, what about the companies of all sizes whose collection of personal information is a by-product of other business operations, and who first realise what problem this gives them when a discovery / disclosure obligation confronts them with the problems raised by the possession of such data? In reactive terms, lawyers need the ability to identify confidential information, to weed it out where possible and to redact it as necessary.
An article by Sheila Mackay of Xerox Litigation Services called “Apps” and Big Data and Privacy – An Oxymoron? focuses on an earlier stage – the implementation of an information governance programme designed to identify private information as it is created, to audit the processes used for managing it, and to develop a litigation readiness plan which includes protocols to manage confidential data. Read the rest of this entry »
Part of my role is to help those responsible for eDiscovery / eDisclosure to identify the products and services which they might consider when deciding on the “tools and techniques” (as the UK Practice Direction 31B puts it) to be used to reduce document volumes to a manageable size and to review them. I don’t give system selection advice, for obvious reasons, but I do like to identify the product descriptions and ancillary materials – articles, papers etc – which help to throw light on the wider subject beyond the product itself. We are seeing some good materials coming out of providers at the moment, and I am working my round some of them; you would not thank me if I served them up all at once.
FTI Consulting, and its technology segment FTI Technology, have just announced their new Predictive Discovery solution. That is interesting enough, but what makes it more so is the material which FTI has published at the same time in order to make the subject more comprehensible to lawyers. Part of the value in the surrounding materials (which goes beyond their application to FTI’s own solution) is the way they address the “black box” problem – the glib expression from lawyers who don’t feel up to the intellectual effort of trying to work what what this kind of software does and how it can benefit their clients and themselves.
Let us look first at FTI’s new Predictive Discovery solution. It is a managed service, founded on new technology, which brings together lawyers, statisticians, technical experts and a set of processes which together work with the client to produce a result which is accurate, defensible and cost-effective. The consultative approach is important: the FTI consulting team works with the lawyers to review a subset of a document collection, making relevance and privilege decisions to develop a training set which is used to score documents for those attributes. The lawyers can then use the advanced analytics in FTI’s Ringtail software to verify the results. That same iterative approach continues as the review progresses, with a mixture of statistical sampling and by-eye verification from the lawyers. This iterative element is critical – humans have every opportunity to cross-check software conclusions and software functions can monitor manual decisions to identify, for example, inconsistent conclusions reference to other things known about documents of the same kind.
The service can be customised to suit the case; prioritisation based on relevance is one obvious function, but the technology and processes can be used as a means of validating decisions made by other processes, to cull down obviously irrelevant material and to check incoming productions, amongst other things.
A press release gives limited scope for explanation, and FTI has been working hard to foster understanding of predictive coding generally as well as writing about the scope of their service. This output includes an article in the FTI Journal by Senior Managing Director Joe Looby called Taking Predictive Coding out of the Black Box. It is an extremely helpful article, neither neither requiring existing knowledge nor patronising the knowledgeable reader, and it is illustrated with helpful diagrams.
That is backed by a webcast which I promoted at the time of its live broadcast and which is still available for download. In addition to Joe Looby, the speakers are the well-known Jason Baron, Director of Litigation at the Archives and Records Administration and Daniel Slottje who, in addition to being a professor, economist and statistician at the Southern Methodist University is a Senior Managing Director in FTI Consulting’s Economic Consulting Services practice. The article and webinar together serve as a comprehensive review both of the technology aspects of predictive discovery and of the recent developments in the courts.
Lastly on this subject, Joe Looby recently gave an interview to Metropolitan Corporate Counsel which explains in more detail what FTI’s offering consists of and expands on the point that there are multiple use cases which lawyers should think about when considering predictive coding.
Dr David Grossman is Associate Director of the Georgetown Information Retrieval Library and an Adjunct Professor of Computer Science at the Illinois Institute of Technology. He has recently written a paper called Measuring and Validating the Effectiveness of Relativity Assisted Review which, in four easily-read pages, discusses the accuracy of the Relativity Assisted Review Technology and workflow. Although, as the paper’s name implies, a specific proprietary tool was used for the validation exercises, the principles set out in it are useful for anyone contemplating the use of technology assisted review for eDiscovery / eDisclosure.
Before looking at the paper itself, it is worth considering what objective a lawyer has in mind when using any technology to conduct any discovery exercise. In essentials, it is an information retrieval exercise similar to many others – the stakes are high, but no higher than apply to, for example, analysis of medical data as a preliminary to the launch of a new treatment or medicine, or of stress data as part of the design of a new aeroplane. Life or death turns on the outcome of such exercises which depend on collecting such data, sampling, and analysing it, and testing the results within margins of error which vary with the purpose.
The most conscientious lawyer would not claim that the identification of relevant documents for eDiscovery is more important than the testing of medicines or aeroplanes, yet they seem noticeably reluctant to put their faith in the statistics which underlie such things. What is so special about eDiscovery? Read the rest of this entry »
The Delaware Hooters case promotes not just predictive coding specifically but the idea that lawyers must consider all appropriate tools and techniques to reduce the burden of eDiscovery / eDisclosure. That approach will be required in Engalnd and Wales by April 2013, if it is not in fact required already.
An article called Orange hot pants and predictive coding – a match made in Delaware by Recommind’sDrew Lewis sent me scuttling back to my own article about Vice Chancellor J Travis Laster’s conclusion in “the Hooters case”. Was I one of those who used the expression “judicial activism” in the derogatory sense criticised in Recommind’s article, and was I also one of the “respected industry fixtures” who “jumped on the Chancellor and decried this activism as a harbinger of things to come”?
On the surface, my area of professional interest looks pretty narrow. When I launched the eDisclosure Information Project, its proposed scope was implied by the word “eDisclosure” – only the civil jurisdiction of England and Wales uses the term “disclosure”, and I set myself the task of carrying information between courts, lawyers, clients and providers in that narrow context. That proved limiting very quickly: civil litigation is only one of the reasons why parties need to identify, analyse and review electronic information, and England and Wales is only one of several jurisdictions which impose such requirements. The US, Australia, Singapore, Hong Kong, Canada, New Zealand and Ireland have relevant obligations in civil litigation and they – the US in particular – export those obligations by expecting foreign parties to comply with their domestic rules when they litigate in US courts or fall within the powers of a regulator or state enforcement body.
That brings in countries with no discovery tradition, including EU countries and those of the Asia-Pacific region, such as China, who have increasing amounts of trade with the US but whose data protection and privacy laws, as well as culture, are inimical to common law discovery demands.
I could purport to cover all this by sitting at home in Oxford distilling what I find on the Internet, and communicating with people around the world by email and video-conferencing calls. That would certainly be easier than what I actually do, which is to get on a plane to go and see things for myself. I don’t kid myself that I become expert in a jurisdiction by dropping in from time to time, but the “carrying messages” part of my role is better fulfilled if I go occasionally to talk with (not just talk to – the listening matters more) people who practice in other places. That took me to Hong Kong for a quick visit to Epiq Systems there earlier this month.
Epiq Systems
Epiq Systems has three business activities, of which the eDiscovery solutions component (the others are bankruptcy solutions and class-action solutions) plays an ever-bigger part in each succeeding year’s accounts. It has grown from being a software-led company (with its processing tool eDataMatrix and review tool DocuMatrix), to being a broadly-based eDiscovery consulting company offering forensics and collections, processing, document prioritisation and document review services. Its first non-US office was in London, which is where I came across it, and it subsequently opened an office in Hong Kong. Epiq uses Equivio’s Relevance product (now part of Equivio Zoom) for predictive coding and document prioritization, and recent acquisitions bring it a wide range of review tools, including kCura’s Relativity, iCONECT and Concordance FYI together with expansion of its managed review services. Epiq’s most recent development has been the opening of a document review service in Hong Kong, allowing it to offer a full range of consultative, technology and review services in the Asia-Pacific region. Read the rest of this entry »
This is a summary of the posts about eDiscovery / eDisclosure on my Google Plus page between 21 and 28 October 2012. Those which relate to webinars etc which have now passed may lead to blind links. Where I know of a new address for a downloadable version I have given it.
I have written an introductory piece which gave a context to the excellent eDiscovery Ireland 2012 conference which took place last week in Dublin – see eDiscovery in Ireland – coming from behind gives opportunities to get it right. The overall message from that is that there are opportunities for a jurisdiction which has litigation of all sizes, from major financial, governmental and commercial disputes downwards, to devise rules and procedures specifically to focus on case management generally and the costs of electronic discovery specifically. The latter can often consume more than half the total budget for a case, and there is growing awareness in Ireland that its management cannot be left to drift following rules devised for a different age.
In this article, I summarise the main points made in the sessions which I attended. My earlier article distilled some of the overall conclusions from the day. Most of them are applicable in any jurisdiction.
Primer Session: Introduction to eDiscovery – Dr Vivienne Mee of Rits Computer Forensics and Lisa Broderick of DAC Beachcroft
I did not attend this session, but I commend the idea of introducing a conference with such a primer, and in any jurisdiction. It would be easy to assume, for example, that all US lawyers and judges spring fully-formed into a knowledge and understanding of eDiscovery principles and that they all start from some higher level than the rest of us. That is far from the case, and pitching things at the right level for the audience is one of the challenges of speaking on the subject. An introductory session allows the subsequent speakers to assume at least a minimum level of knowledge.
One year on – the Changing Face of eDiscovery–The Hon Mr Justice Frank Clarke
The “year” referred to in the title of Mr Justice Frank Clarke’s session is the twelve months since the first eDiscovery Ireland conference, a year which has seen his elevation to the Supreme Court and the development of a procedural guide on discovery which is almost ready for publication.
Mr Justice Clarke opened with what may be the single most important point to get across to lawyers. Studies in the US have shown that, properly used, technology is more accurate than manual search and review (with the emphasis, of course, on “properly used”). We need to develop more trust between lawyers and IT professionals and it may be that some research could be undertaken on Irish cases which would develop the necessary degree of trust.
Mr Justice Clarke’s second, and equally significant, point was that no system is going to be perfect. The obligation, as a matter of law, is to take all reasonable steps, and innocent mistakes are unlikely to have serious adverse consequences.
Parties may be risk of not recovering the costs if they did not use the best methods, he said, and “best” included cost considerations. It is open, he said, to a party to say “You did it in a stupid way. Why should we have to pay €600,000 when you could have done it for €250,000″. Read the rest of this entry »
Hobs Legal Docs was the sponsor of an interesting article in The Lawyer recently which emphasised the need to use technology to respond quickly to regulatory demands.
Those who find themselves overwhelmed by the timetables for eDisclosure / eDiscovery in civil litigation may like to consider the pressures faced by companies and their lawyers when a regulatory investigation turns up. There are no nice long periods for reflection when decisions are to be made not only about the proper scope of the discovery exercise but also about the tactical and strategic implications.
Litigation searches are generally bounded by defined issues, and one can usually identify a date range and a handful of key custodians. Regulatory investigations often have no such boundaries and the question to be answered very quickly is “How deep is this pit?”. That in turn dictates the approach to be taken vis-a-vis the regulator, ranging from aggressive rebuttal to grovelling contrition, often backed (in cartel cases, for example) by a potential hurry to be the first to come clean – the “race for leniency” as one contribuotr puts it in the article.
If the use of technology like predictive coding seems optional in some cases, it is hard to see alternatives for some of these regulatory investigations. There is no time to set junior fee earners to making document trawls and it is vital to put senior lawyers to work at once to “teach the system how to look at documents in the way lawyers do” (as Mark Surguy of Eversheds put it in his Dublin speech last week). A ticking-off from a judge is a mild consequence compared with the effect on the share price and other significant things if one gets this reaction wrong. Read the rest of this entry »
Here is a summary of the (relatively few) eDiscovery updates posted on my Google Plus page between 14 and 20 October.
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Xerox adds streamlined redaction to its upgraded Omnix 5.4 discovery platform
The headline feature in the new release of the Xerox XLS discovery platform Omnix is a redactions tool which allows redactions to be applied automatically, together with reasons for the redaction, to specific terms in documents based on search results and advanced text pattern hits. The new tool also allows reverse redactions, that is, the blanking out of anything in a document which does not meet certain criteria. [More]
Going it alone: Millnet comment on Drinker Biddle’s in-house discovery function
I wrote recently about the subsidiary company set up by Chicago firm Drinker Biddle to manage the eDiscovery function for the firm’s litigation clients. This development was said by the firm to be a reaction to the high costs of involving external providers of eDiscovery services. I described this reaction as a conventional market development, a way of fighting back as others encroach on your traditional territory. [More]
A Very Gallant Gentleman – Captain Oates walks out into the snow
The article Going it alone, by Millnet’s Charles Holloway, mentioned below, includes a part of the painting called A Very Gallant Gentleman painted in 1913 by John Charles Dolman. It depicts Lawrence Oates, a member of Scott’s ill-fated 1912 Antarctic expedition, going out into the snow to die alone because his ill-health was slowing the others down. His last words, “I am just going outside and may be some time”, are taken as the epitome of self-sacrificing courage, causing Scott to write that Oates “died a very gallant gentleman”. [More]
Nuix and RSD partnership aims to bring data in from the cold
eDiscovery and Information Governance software company Nuix has joined forces with Geneva-based RSD to help organisations identify and tag documents and data which lie outside the formal document repositories. Once found, documents can be brought in from the cold, left where they are or deleted according to the policies in force in the company.
The partnership involves the incorporation of the Nuix search and analysis technology into the RSD GLASS 3 platform.
Recommind: The ROI of Predictive Coding – Thursday, 18 October
This webinar discusses the cost savings and the quality improvements associated with Predictive Coding. It is obviously good to be able to assess in advance what the return will be on the investment in any technology. Two things are needed to begin – some metrics from past cases in order to see what the typical cost is, and some idea of the percentage reduction which might be achieved using the proposed technology. Given the cost of review, you do not need a very high percentage reduction to pay for the use of the technology. [More]
The reforms consequent on Lord Justice Jackson’s recommendations will take effect in April 2013. A conference taking place in London on 15 November will focus on those which relate to eDisclosure, stressing the benefits which will flow to lawyers and clients and not merely the risks and burdens of compliance with new rules.
It is conventional, when new laws or rules are pending, to see warnings in lurid headlines about the consequences of being unready for the coming changes. Lawyers do this with their clients, of course, urging them to seek advice (from them, obviously) about the steps which must be taken, the policies which must be drafted, the training which must be given and the other preparations which must be made if the clients are not to take the high road to Sodom and Gomorrah when the new rules take effect.
It is easy to take the same line with lawyers themselves when court rules or imminent legislation will affect the way they work. We saw this when the eDisclosure Practice Direction 31B came into force in October 2010 with its obligations to discuss with opponents the sources of their clients’ data, the scope of the search, the tools and techniques which they intend to use to identify disclosable documents, and other things all preparatory to having a meaningful discussion with the judge at the CMC. Many were content to wait until the problem arose, to take on the chin the criticism from their opponents and the judge and to learn the ropes on the job, as it were.
The reforms consequent on Lord Justice Jackson’s report on litigation costs are all to take effect on the same day, 1 April 2013. They are so broad in scope, and some of them are so contentious, that it is easy to miss those parts of the rule changes which directly affect case management generally and eDisclosure specifically. Since they include closer judicial control of cases and an end to the generally relaxed approach which the courts have shown hitherto towards non-compliance with rules and orders, it might be a good idea to start finding out what the changes include.
There is more to the case management regime than the risk of punishment or being made to look a prat in front of court and client. Rule changes, both those of 2010 and those which are coming in April 2013, offer real advantages to lawyers who understand the rules, and to their clients. The 7th eDisclosure Forum, taking place in London on 15 November, is a one-day summary both of the rule changes and of the parts which offer opportunities to those who are ready for them. Read the rest of this entry »
There is a long-running quiz in the Sunday Times called Where Was I? Geographical, historical and literary information is given and two questions are asked, one of which is usually “Where was I?”. Let’s try the same with the conference which has just closed in Dublin (and yes, I know the answer is in my headline).
One speaker opens his session by sharing a video clip of a horse (the speaker is a co-owner) winning the Irish Grand National. The speaker who preceded him, a judge of the Supreme Court, turns out to have been a steward at the race. Where was I?
The answer, of course, is Ireland, where there has always been a close connection between the bar and the turf. The co-owner was Tom Gilsenan, who is co-owner also of document management company Informa. The horse was Lion Na Bearnai, or ‘Fill in the Gaps’ who, at 33-1, was not necessarily expected to win the race. Mr Justice Frank Clarke was one of the stewards.
If eDiscovery were a race between jurisdictions, then Ireland would not necessarily start as the bookies’ favourite. Coming from behind, however, is no indicator of final position, as you will know if you watched Frankel stroll out of the starting gate at Ascot last week. If Ireland’s civil litigation system is to move to the front rank then, on the strength of his recent outings, Mr Justice Frank Clark will be its steward. Read the rest of this entry »
Philip Favro of Symantec, in an article called Defensible Deletion: The Cornerstone of Intelligent Information Governance on the eDiscovery 2.0 blog, defines defensible deletion as “a comprehensive approach that companies implement to reduce the storage costs and legal risks associated with the retention of electronically stored information (ESI)”.
He goes on to say that organisations which have done this “have been successful in avoiding court sanctions while at the same time eliminating ESI that has little or no business value”
That is the point, of course, of the word “defensible” in this context. It matters most in the US, where everyone goes in fear of the sanctions bogeyman, apparently without regard to the terms of Rule 37(e) of the Federal Rules of Civil Procedure which reads as follows:
(e) Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
Most other jurisdictions can manage without this “safe harbor” because they do not have the same (alleged) reason to fear sanctions. I say “alleged” because if US companies paid more attention to Rule 37(e), they too could set about the deletion of material which is not presently the subject of a legal hold and which is not required for statutory or business purposes. It would help, too, if they read some of the sanctions Opinions which cause such dread to see how many of them were the consequence of the “routine, good-faith operation of an electronic information system”.
If you are short of ROI information to justify the work involved in a defensible deletion programme, try and calculate how much money was spent last year processing and reprocessing useless data for eDiscovery purposes, rejecting it time after time, at considerable expense. There’s a big chunk of ROI there.
Compliance with data privacy controls is much more than an eDiscovery / eDisclosure problem. Those whose primary focus is eDiscovery tend to see data privacy compliance as an obstacle which stands in the way and complicates data collection for litigation or regulatory purposes, but the privacy laws of the EU and, increasingly, of other regions, present compliance challenges quite apart from potential discovery obligations.
The solution to a wide range of discovery problems lies increasingly in pre-emptive action – in defensible deletion, in pre-emptive tagging to give searchable labels at the moment of creation, and in instituting policies which define the status and life-cycle of data. This applies in any context, but is particularly valuable where personal data is or may be involved. Put the stuff in the right bucket, so the inescapable logic goes, and you simultaneously flag it for general compliance purposes and make it easy to identify for discovery reasons.
The latest extension to Bloomberg’s cloud-based enterprise information management service, Bloomberg Vault, gives physical form to this approach by the concept of the “Local Vault” which allows data compliance and archiving policies to be configured at the employee level by reference to the regional regulations which apply to the content, including e-mail, mobile communications, social media, instant messaging, files and documents. Read the rest of this entry »
How much work should the clients put into their own eDisclosure / eDiscovery? We express caution at the idea that the clients should collect their own data, largely because of the risk that they will damage its integrity in the process or, at least, lay themselves open to the suggestion that they might have done. On the other hand, it is their case, their facts and their document collection, and it is right to hope for their input into the decisions as to what is important – or, to put it another way, it is rather arrogant for the lawyers to get stuck into a disclosure exercise without getting as much information as they can from the clients.
Laura Zubulake, she of the eponymous sanctions case in the US, is emphatic that her own detailed review and analysis of the documents, relying as it did on her own knowledge of her former employer, was crucial in challenging their discovery and winning her case.
Terry Harrison of Hobs Legal Docstells an interesting story about a case in which the clients had devoted a great deal of time to their own painstaking analysis of the documents required for a case. Hobs first reduced the volume from its original 300Gb of forensically-collected data and brought it down to 40Gb. They then used Relativity Assisted Review (RAR) to help work through the rest, much aided by the work which the clients had done. Read the rest of this entry »
Two of the most interesting shifts in the eDiscovery market in recent years are embraced by the words “consolidation” and “integration”. “Consolidation” implies that one company has bought another to fill a gap in its portfolio, to broaden its client-base or to acquire a mixture of skills, IP and markets. ”Integration” connotes a technical relationship by which two companies whose strengths lie in different places in the EDRM (Electronic Discovery Reference Model) work together to ease the movement of data from one to the other.
This gives potential users an interesting set of choices. They can go with a provider whose portfolio covers the full range of eDiscovery functions (probably as a result of a consolidation event) or they can employ a project manager (whether internal or external) to manage the transition from one platform to another. Users are pulled in opposing directions here – there are obvious advantages in having “only one butt to kick” (in that inelegant but useful phrase), and true end-to-end providers can guarantee seamless data transfer; the corollary is the loss of negotiating position between providers and the loss also of the ability to choose the application which is, for whatever reason, the tool of choice for that part of the EDRM for that client. Different cases require different tools depending on the volume, complexity, budget and so on. Read the rest of this entry »
There is a webinar today at 2:00pm EDT given by Patrick Burke, Assistant General Counsel at Guidance Software, and me, with the title Five Best Practices in eDiscovery Readiness. Corporations of any size face litigation, regulatory requests, or the need to undertake internal investigations at very short notice. Regulatory requests in particular are increasing in number and can have serious implications for the organisation. The need to find and produce electronic documents quickly will not go away.
Our webinar identifies five best practices which organisations should adopt to put themselves in the best position to face such demands and to find what they need promptly and efficiently. The side-benefits lie partly in the improved negotiating position which results from being able to show that you are on top of your data and partly in the saving of expense – it is a costly business conducting your information governance at short notice at lawyer rates, which is generally the effect of waiting until you have been hit.
The webinar includes discussion about developments in UK civil procedure which are aimed at identifying data sources promptly for the purposes of the discussions which are now required before the first case management conference. Being able to meet this this obligation is a tangible example of the advantages which flow from investment in the technology and processes described in the rest of the webinar.
Most of these updates on my Google Plus site are from the week ending 6 October. After that, I was at the Masters Conference in Washington and at an event given by Symantec-Clearwell at Tower Bridge, with no time to write. I am content, in fact, to come late to my summary of these short posts – it gives s second life to subjects which would otherwise sink in the Twitter-stream.
I keep a large stock of things to write about thanks to my favourite software product, Evernote – I dip into it whenever there is a spare moment and pull out something to link to. That is fairly easy; the subsequent linking – via LinkedIn and Twitter at the time of publishing, in these updates, and (in due course) in the master list of articles on my web site, is extremely time-consuming and a major addition to my work-load. The payback comes in the form of SEO (Search Engine Optimisation) both of my own articles and of those to which I link.
There is much more to organising a conference than the mechanics of bookings, venues and other practical things. It requires a good understanding of the industry to which the conference is addressed, a wide range of connections in that industry, and the ability to attract sponsors, speakers and delegates in circumstances where the interests of each of these groups is dependent on the others – delegates come for the programme, speakers like to know that they will have an audience, and sponsors expect to reach delegates who might be interested in the products and services. That is not a circle which I would care to handle.
Now add a dimension – a London-based conference team is organising an eDiscovery conference in the US, the spiritual home of eDiscovery, in competition with many other providers for whom this is home territory. A big hat tip, therefore, to Abi Manders and the team from Legal IQ in London whose Information Governance and eDiscovery Strategy Exchange, held outside Washington DC in September, was a great success. Jason Velasco, writing in eDiscovery Journal, described it as “one of the most intense structured education/networking schedules I’ve seen in our industry”. I fully endorse that description.
I always bid high when asked whom I would like to see on my panels at these conferences. Years ago, this group asked me who I would like to see on a London panel. “Grimm and Facciola” I said ambitiously. I got a call a few days later: “They have agreed to come. What would you like to do with them?”. The result was the first proper US–UK judicial eDiscovery panel, with Judge Grimm and Judge Facciola representing the US and Senior Master Whitaker and HHJ Simon Brown QC for the UK. I and Patrick Burke from Guidance Software made the most of that, setting a high target to beat with stimulating discussion and exchange of ideas from these leading judicial thinkers.
When asked the same question this year, I asked casually for Mr Justice Frank Clarke from Ireland, for any judge involved with the New South Wales Practice Note SC EQ 11, for one of the two UK judges named above, and for any one or more of the handful of US judges (and it is still only a handful) who knows the subject and can speak informatively and entertainingly about it. And that is what I got – six judges from four jurisdictions on one panel, each of them expert both in their own jurisdictions and in the principles which apply in every jurisdiction. There is more on this in my summary of the panels themselves. Read the rest of this entry »
There are rumours of at least one significant acquisition – by “significant”, I mean that a major player will buy a strong but smaller niche player to give it new markets and not merely talent and client lists.
I would like to say that my antennae had picked up TransPerfect’s acquisition of Digital Reef, which was announced today, but that would not be true. What I had heard was something different and did not identify the target. It is probably not the case either that TransPerfect’s primary motive was the opening of new markets, since TransPerfect seems well able to open new markets anyway.
The acquisition is, however, consistent with the broad idea expressed in my ILTA article – that bigger players will fill the gaps in their market offerings by acquiring the best tools and skills, if necessary by buying the companies which own them. Digital Reef’s Big Data processing power for enterprise-scale eDiscovery and its early case assessment abilities make an attractive addition to TransPerfect’s service offerings.
TransPerfect is a big player with annual revenues of over $300 million. It is the world’s largest privately-held provider of language services and technology solutions with offices in 80 cities on 5 continents. It also has hosting facilities in London and Hong Kong amongst other places.
Digital Reef’s clients will be pleased, I would guess, to have access to the latter as well as to the increased footprint, the support, and the backing for future development. I recall a conversation a long time ago with Ivan O’Sullivan, Chief Operating Officer of Digital Reef and now joining TransPerfect’s senior management team, about his unwillingness to take on projects which Digital Reef would find hard to support for geographic reasons. That brake is now removed.
I was at a Washington conference for much of the week ending 22 September and the updates for that week are correspondingly reduced in number. This selection covers two weeks’ of my Google+ updates. Some of them relate to webinars etc which were pending at the time of the G+ notice but whose date has passed by the time the summary is published. In many cases, the link will take you to a recording.
After leaving Oxford, I
qualified as a solicitor in 1980.
I have worked as a consultant
and developer in litigation support since 1993.
My primary focus is on the encouragement of
e-Disclosure by working with the courts and
with suppliers to achieve a joint approach.
Posted by Chris Dale 
