June 25, 2012
This is a continuation of a series of roughly chronological mini-posts following my recent visit to Hong Kong.
I have reported elsewhere that I heard a rumour of a senior appointment at FTI’s Hong Kong office, and deduced that they must have recruited Richard Kershaw. My assumption proved correct. Richard kindly invited Browning Marean and me out to dinner, giving us en route the opportunity to see FTI’s rather fine offices in The Center.
The Center, Hong Kong, where FTI Asia-Pacific has its offices. Yes, I know the photograph is sideways, but the resemblance to a rocket seems apt given FTI’s growth in the region.
There was a gleaming Pashley bicycle in reception which could have belonged to a staff member or could have been symbolic – Pashley has successfully married modern technology and old-fashioned values and style, and might well have been chosen deliberately to reflect those qualities in what FTI says on its website is “the largest specialist advisory firm in Asia-Pacific”. Read the rest of this entry »
September 27, 2011
Electronic discovery company Applied Discovery and KPMG are amongst those who have recently partnered with Equivio to integrate Equivio>Relevance into their existing eDiscovery applications. These two recent announcements give me an opportunity to return to the subject of software-assisted document review using what is generally known (but see below) as predictive coding. Recent discussions with some lawyers have shown scope for fundamental misunderstandings about what this kind of software does, and a look at the explanations produced by Applied Discovery and KPMG, as well as those of some other players in this space, may help.
My primary objective is clarity for those who come across the names and the terminology but are not necessarily clear as to the functionality being offered or its purpose. There seem to be three aspects which some lawyers find difficult about this kind of software, each of which is worth challenging. These are the following:
- They think it is being sold as a substitute for human review of the documents which are to be disclosed. That is not its purpose. It provides (amongst other benefits) a means of identifying irrelevant (or less relevant) documents or, to put it the other way round, a way of prioritising documents so that those identified provisionally by the software as the most relevant or most important are brought to the top. The important word here is “provisionally”, with its clear implication that the lawyers get every opportunity to double-check both what has been ranked as important and what has not.
- It is the subject of debate about judicial acceptability which, again, follows from a misunderstanding both of what it does and of what the courts expect. You may care to read an article called Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat which reports on what I describe as “one of the clearest statements yet by a judge that the use of new technology like predictive coding is an acceptable way to conduct search”. Judge Peck’s immediate context may have been the US Federal Rules of Civil Procedure, but the principles which he covers apply anywhere, and the UK’s Senior Master Whitaker has said much the same both in conference speeches and in his judgment in Goodale v Ministry of Justice. Master Whitaker has also emphasised repeatedly the first point made above – that none of this software is intended as a substitute for human review of documents to be disclosed; he has heard this reaction as well.
- There is a paradox inherent in the nature of lawyers. They crave certainty but prefer it expressed in words rather than in numbers (a point which comes up in my recent report about the risk management function of corporate counsel). The statistics-based evidence of an application’s accuracy may underpin a decision to use this type of software, but lawyers still prefer the evidence of their own eyes. In fact, the applications give every opportunity for output to be validated by humans, but (in a second paradox) this may be getting lost in the marketing literature’s emphasis on the science.
The second of these points, judicial acceptability, is adequately covered in my Judge Peck article. In this article, I will focus on the lawyers’ own confidence in these applications as an aid to lawyerly judgement, not a substitute for it. To do that, I will look at the descriptions of what these applications do rather than on the science behind them, supporting the relevant parts of the Applied Discovery and KPMG materials and by extracts from those of other products with similar functionality.
First, however, it is worth saying a few words about terminology, not so much to define the labels as to pick the generic purpose out from the proprietary or product-specific names given to this kind of functionality. They all work slightly differently, and I defeat my object of simplicity if I qualify my deliberately broad descriptions with any attempt to describe the distinguishing features of each of them. Read the rest of this entry »
May 13, 2010
The first of the E-disclosure seminars organised jointly by Professor Dominic Regan and me took place yesterday at Ely Place Chambers. Dominic and I were joined by Senior Master Whitaker and by speakers from three technology providers, 7Safe, Legal Inc and FTI Technology to bring together the law, the practice and the technology in one afternoon session.
The expressed rationale for the e-Disclosure Information Project is to bring together all those with an interest in making electronic disclosure efficient and cost-effective. That crossover is important – knowledge of Part 31 CPR and its practice direction is a good start, and the increasing number of cases involving e-disclosure failures send a strong warning to lawyers. Lord Justice Jackson drew attention to the need for more active case management by judges, and the proposed new practice direction and ESI Questionnaire raise the temperature on that front. Meanwhile, the technology reduces in cost as it increases in capability and, if properly used, maps well to the steps which parties and the court must take together, first to decide on the scope of disclosure and then to achieve it. The case management itself must be proportionate to what is involved. Read the rest of this entry »
April 26, 2010
Lawyers tend to overlook structured data. If they think of it at all when giving disclosure, it goes into the box marked “too difficult to deal with”. A decision that it is disproportionate to handle it may be right, but “decision” implies that its value has been weighed against cost, which is not the same as just ignoring it. I asked Jim Vint at FTI Technology to give me some examples where structured data was crucial to a case.
In general, lawyers like structure, with its implication of order and of things being in the right place. I do not necessarily mean that they (or “we”, strictly, since I am a lawyer too) prefer that every day is the same from alarm clock to Ovaltine (that is what the civil service is for as a career), but lack of organisation wastes time, and time is money. If you need a library book, your favourite coffee, or a particular iTunes track, then it is helpful to have some degree of pattern and consistency to help you find those of a like kind in a regular place. You expect a library to group its stock by subject and type, and not have law reports, textbooks and periodicals stuffed any old how into random shelves or all over the floor; imagine going into Starbucks and being told that every possible permutation of coffee, chocolate and the rest is in a cup somewhere, but that you must lift each lid to see which is which; you would not appreciate having to scroll down endless lists of iTunes tracks until you find the one you want. We go for the structured stuff every time. Read the rest of this entry »
February 20, 2010
My self-imposed job description involves flitting between all the players in the electronic disclosure / electronic discovery world, picking up information and ideas from one place and dropping them in another. I talk to judges, lawyers and technology suppliers, read a lot of web-based information and exchange e-mails and tweets with people from every corner of the e-Discovery world – “world” in both the figurative and literal senses. I am interested in the court rules, the practice and the technology and in how they relate to each other.
I keep secrets where I have them – from working with lawyers on behalf of their clients or when I am told of pending technology or marketing initiatives, to say nothing of the gossip which flies around – but, on the whole, my role is to talk and write about what I hear or read. The only filter apart from confidentiality is whether I am interested and think that others will also be interested.
This is a privileged position – I have lots of privileges, but the ability to pick off only the things which interest me outranks the rest. It allows me, magpie-like, to pick out the bright and shiny things and leave the rest on one side.
One of the bright and shiny things in the litigation software market is Attenex, whose visual analytics caught my eye some time ago for precisely the reason why they attract lawyers – they make it possible to grasp the overview and to drill down to the detail in a way which is simultaneously efficient and intuitive. Attenex is now owned by FTI Technology, as is the equally iconic Ringtail Legal. FTI has now had time to bed these products down into their overall (and very broad) software and services offering and I thought I ought to go and see where they have got to and how the pieces fit together in the process. Craig Earnshaw, managing director of FTI technology in London, invited me in for an afternoon recently to bring me up to date. Read the rest of this entry »
January 29, 2010
FTI Technology will be out in force at LegalTech, as you would expect from a company whose range of products and services cover the full range of eDiscovery problems and solutions.
They commissioned an IDC survey which was published in 2009 and whose findings included the following:
- Multinational litigation is growing more common. Close to 70% of panelists indicated that their companies are involved in legal matters with multinational requirements.
- Most large matters take more than two years to resolve. 64% of respondents said their largest matter took over two years to resolve, and 35% indicated that their largest matter lasted for more than five years.
- Data collection volumes are growing. The proportion of panelists whose average ESI collection per matter was larger than 2.5TB increased 18 points from 19% of panelists in the 2008 study to 37% of panelists in the 2009 study.
- E-discovery budgets are flat or decreasing. 36% of respondents said their budgets were flat and 42% said their e-discovery budgets were declining.
If none of this is surprising, it is helpful to have it backed by some statistics. Read the rest of this entry »
December 21, 2009
Recent comments from readers cover the Gartner report on the litigation software market, the state of play in Hong Kong, and the bright light which has suddenly been shone on the need for government departments to approach electronic disclosure in the same way as a large law firm or company would approach it.
From time to time a reader drops me a line suggesting that something I have said is ambiguous or unclear, or that I have left something out. The omissions are often deliberate – not by way of censorship, but because I am anxious both that I should get to the end of writing the post and that you should finish reading it. These signs that people are bothered enough to write in are extremely welcome. I had three last week, and they are all worth passing on. Read the rest of this entry »
September 3, 2009
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. Read the rest of this entry »
August 2, 2009
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. Read the rest of this entry »
March 31, 2009
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). Read the rest of this entry »
February 22, 2009
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 Read the rest of this entry »
October 4, 2008
The Vikings brought with them some habits which were deplored by their hosts, but they also brought technology which we turned to our advantage. We do not much like some of the practices in US civil courts, but we can certainly use the technology which has been honed in them
On 8 June 793, the first Viking long-ships appeared off the coast of Britain – “ravages of heathen men” said the Anglo Saxon Chronicle, which had recently predicted some such cataclysm. The Vikings did a bit of raping and pillaging and pushed off home. The next year they were back, but were beaten off, retiring hurt with their leader dead, many drowned in a storm and others killed on landing.
Their technology, particularly in ship-building, was way ahead of its time, and improved rapidly to reflect the experience of the sailors and as an aid to the rough and tumble of their work. Not only were the ships able to face the roughest storms, but they had shallow draughts and were light enough to carry, both useful developments which were enhanced to cope with their raids. Nor were their victims an uncivilised and impoverished race – the visitors would hardly have bothered to keep coming back if they had not hoped to profit from it and, however attractive the ladies of the North-East, their charms hardly warranted a risky annual journey. Read the rest of this entry »
September 21, 2008
If Ernst & Young Forensic Technology and Discovery Services manage their clients’ work as thoroughly as they manage their party invitations – as I am sure they do – it seems unlikely that they miss much. My Inbox is full of reminders and confirmations of the date, all apparently from department head Sanjay Bhandari – I say “apparently” because I was actually talking to him at the Legal Week Litigation Forum when the last of them arrived the day before the party, and I am damn sure he wasn’t sending e-mails as we spoke.
It is worth a trip down to More London even if you are not favoured with an invitation from Ernst & Young. It lies on the South Bank, just west of Tower Bridge. I found it when I spent a night at the Hilton Tower Bridge earlier in the year – it is even better by night than by day. The river frontage is a wide space with seats and those fountains which bubble gently out of the ground and then shoot up your trouser leg when you get too close. Apart from E&Y’s building, there is Boris’s bee-hive shaped office, Norton Rose, and a Marks & Spencer food store to serve as a backdrop, with HMS Belfast, 30 St Mary Axe (aka the Gherkin) and the Tower of London in front of you. I saw a dinner party taking place on a platform hanging from a crane, with waiters wandering nonchalantly around 60 feet up.
The view gets even better when you get up E&Y’s building, particularly at sunset, with a panorama from Westminster to the Tower. One probably should not choose a professional adviser on the strength of the view from its office, but it might be a tie-breaker when you come down to the last two choices. Read the rest of this entry »
September 21, 2008
Attenex is not the only provider of heavy-duty processing and analysis software for chewing through very large amounts of electronic data, but the name has become a kind of shorthand for that function. As Hoover is to vacuum cleaners, so Attenex is to massive volumes of data in the e-Discovery world – not a bad analogy, in fact, given the aptitude of both for sucking up lots of stuff. Read the rest of this entry »
June 11, 2008
As I write this (kindly tipped off by the ever-alert Jonathan Maas of DLA Piper UK LLP) FTI Consulting is running a Webcast about its proposed acquisition of Attenex Corporation announced yesterday. The acquisition is subject to the relevant US regulatory processes.
No time, alas, to listen, nor to think through the implications for the UK market, but you may like to read the press release. The Webcast is (for now anyway) here.
The press release rightly emphasises that the addition of Attenex to FTI’s acquisition of Ringtail means (in their words) that FTI “now owns key proprietary technology for each crucial step of the Electronic Discovery Reference Model (EDRM), providing clients with a single source, industry leading solution”.
The slide supporting the Webcast illustrates this. The processing stage will be covered by Attenex Patterns® eDiscovery software which (their words again) “automates data processing and provides powerful visualization tools for quickly analyzing massive amounts of electronically stored information (ESI)” which will be more closely integrated with Ringtail (there is already software designed to move data between the two products), with FTI’s consulting services as an over-arching link.
Both products can be hosted or installed on site, allowing corporate and law firm customers to use the same technology whichever set-up suits them – which may be different for the same customer on different cases.