Use of technology-assisted review and costs-shifting in US patent case has UK parallels

February 25, 2013

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 »


Blog posts on eDiscovery | eDisclosure in December 2012

January 8, 2013

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 »


Short eDiscovery Updates to end November 2012

December 6, 2012

This post summarises the posts on my Google Plus page during November 2012. I gave up on Google Plus after that for reasons given in my post here, and set up a new updates blog. A different form of index will be provided in due course for posts from 1 December. Read the rest of this entry »


The use of technology in regulatory investigations

November 1, 2012

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 »


Short eDiscovery updates to 13 October

October 13, 2012

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.

______________________________ Read the rest of this entry »


Short eDiscovery updates to 29 September

October 1, 2012

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.

Some of these updates relate to future conferences. There is a list of these on my web site. Read the rest of this entry »


Proportionality and a choice of technology from Hobs Legal Docs

September 3, 2012

Recent posts by Hobs Legal Docs remind us that the problems raised by e-Disclosure are resolved by adherence to principles like proportionality as well as by the selection of appropriate technology.

You don’t need scientific proof (though it exists, apparently) for the proposition that your brain does one of two things when subjected to too many choices:  after an attempt to assimilate and evaluate all the options, it either abandons analysis and plumps for something by instinct or gives up the selection process entirely and does without whatever it was which was being considered.

Something similar happens with words like “proportionality” which have multiple potential meanings and no certain definition, and subjects like “cross-border eDiscovery” which sounds like something which other people do, and only occasionally. They quickly become unnoticeable, like ambient music in a shop or the chatter of radio announcers – you have a vague idea that they are there but lose focus on content and meaning.

EDiscovery / eDisclosure has all these elements; multiple providers offer similar-looking solutions with terminology picked from a narrow vocabulary which includes polysyllabic words like “proportionality” and expressions  like “cross-border eDiscovery” whose meaning gets lost with every repetition. All these things do in fact have meaning and potentially have daily implications for lawyers.  In practice, proportionality is usually invoked only retrospectively when the lawyers are called upon to justify an alleged under-disclosure, and however important it appears at US eDiscovery conferences, UK lawyers give little thought to the implications of collecting documents and data from other jurisdictions. Read the rest of this entry »


Dean Gonsowski of Symantec on the eDiscovery maturity model

August 14, 2012

An interesting article on InsideCounsel by Dean Gonsowski of Symantec-Clearwell called The e-Discovery Maturity Model considers the stages through which an organisation goes through in reaching a level of skill and competence appropriate to the issues which it faces.

Picking up on a recent paper by Enterprise Strategy Group (ESG) Dean refers to these stages as “maturity levels”. He says:

The lowest maturity level is aptly named Chaotic. The next levels are Managed, Standardised and then Semi-integrated. The pinnacle of eDiscovery enlightenment is Integrated and Optimised.

He quotes the saying “Where you stand depends on where you sit”, that is, whether and when you reach your destination depends on your starting point. It is the same idea as it turns up in the old Irish joke whose punchline is “Well if I was going there, I wouldn’t be starting from here”.

There are two components to this – your pre-existing level of skill, and the frequency and difficulty of your discovery exercises. Dean refers to the one-off “hair on fire” case which will almost certainly involve dependence on third parties and which may or may not be one of a sequence of such events, and takes us through to a full-blown information governance situation where policies, processes and appropriate teams are aligned with the recurring needs of the organisation.

Every organisation, and every law firm come to that, ought to know where it stands in terms of its skill and experience on the one hand and its target on the other. Dean Gonsowski’s article is a good start in understanding both these things.

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Podcast: explaining present and future UK eDisclosure rules and practice

July 5, 2012

A podcast recorded with Symantec aimed at explaining UK discovery rules and procedures for a US audience is a helpful summary for UK lawyers and clients as well.

When I first took on the role of explaining UK electronic disclosure, it was primarily for audiences in England and Wales – that is why I adopted the business name name eDisclosure Information Project. One UK reaction, I quickly found, was to sneer at the whole subject on the ground that it was something Americans did, and did very expensively. This reaction is both stupid and true – the fact that US courts, rules and lawyers make one hell of a meal to our eyes of what is already a difficult task is not a reason for ignoring it in one’s own jurisdiction. The documents exist; that is where the evidence lies, and the now-codified principles of common law discovery must adapt to cope with them.

I bumped into a senior litigation partner in a few days ago who rolled his eyes at the mention of electronic disclosure, bemoaning the expense of a recent case in which his clients had had to deal with enormous volumes of documents. It was clear that he blamed the rules, or the courts, or the system, or something else inchoate and undefined which was at fault. Surely, I said, the problem is that your clients had a lot of data; if they have it and if it is potentially disclosable according to the rules then it must be managed. There are remedies for all that, but they require a different approach at the clients (see my stream of recent posts on information governance on that subject) and a different way of exploiting the rules, the technology and the court’s discretion once litigation begins.

The rules of England and Wales are, in fact, very much more restrictive than those of the US in terms of the scope of disclosure, the extent of the search, and the express obligations to be proportionate. The courts have, or are supposed to have, a more active role in managing the case generally and eDisclosure specifically, and there is more room than people think to make use both of technology and of the rules to narrow the scope of what is disclosed.

Read the rest of this entry »


Hobs Legal Docs takes Relativity and makes a senior appointment

May 31, 2012

London-based litigation and document management provider Hobs Legal Docs has made two significant announcements whilst I have been on my travels.

The first was the appointment of Patrick Rowan as Sales Director and as a Board Director of Hobs Legal Docs Ltd. Patrick comes from Ernst & Young whence he brings skills and experience in eDiscovery and eDisclosure as it arises in Competition and Regulatory matters, as well as experience in forensics data analytics. The Hobs press release about Patrick Rowan’s appointment is here.

I have yet to meet up or speak with Patrick since his appointment, as I like to do when appointments are made at this level, and hope to remedy that soon.

The other news from Hobs is that it has been appointed a Relativity Premium Hosting Partner, as you can see from the Hobs press release here and the kCura one here.  I was asked at a seminar this week if I would point the delegates to providers of software and services.  I gave my usual answer which is that the list of logos of those who support the eDisclosure Information Project is a good place to start, whilst adding in the interests of objectivity that there are other players in the market. Providers like Hobs bring a wide range of choices, together with the consultative skills and experience to help point users towards the right solution for their particular needs.

As you can see from Hobs Partners page, there is some overlap between their partners and my sponsors, as Relativity joins Westlaw CaseLogistix, Guidance Software, Clearwell and Equivio amongst others on the list.

It is worth reminding you that Hobs has a Manchester office and that all these applications, together with Hobs’ ability to manage paper disclosure in tandem with electronic disclosure, are available from there. I was in Manchester with Terry Harrison of Hobs in January (see eDisclosure seminar in Manchester with Hobs Legal Docs) and hope to be back there, this time on my own, later in the year. My next trip north is to Leeds on 13 June for MBL Seminars, something I will write about separately.

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Integration the target as Guidance Software buys CaseCentral

February 14, 2012

It was Twitter, of course, which first brought the news that Guidance Software had agreed to acquire CaseCentral.  The first tweet came so early that the Guidance web page announcing the deal was a blank placeholder; its page title confirmed that the story was true, but there was as yet no content. The tweets multiplied and the official Guidance Software announcement appeared shortly afterwards.

That announcement is here. The CaseCentral equivalent is here.

Gartner’s Magic Quadrant for eDiscovery Software, published in May 2011, opened with two “Strategic Planning Assumptions”:

By 2014, consolidation will have eliminated one in every four enterprise e-discovery vendors.
By 2013, software as a service (SaaS) and business process utilities will account for 75% of the revenue derived from processing, review, analysis and production of electronically stored information (ESI).

Although the report was, as its name suggests, concerned with eDiscovery software vendors, the consolidation prediction was made in respect of the wider eDiscovery vendor market, implying, correctly as it has turned out so far, that we would see aggregation of the various components of the externally-provided eDiscovery process.

The Magic Quadrant itself appeared opposite the Strategic Planning Assumptions, showing Guidance Software as a Leader and CaseCentral amongst the Visionaries. Of those whose names appeared there,  Autonomy had already acquired the digital assets of Iron Mountain by the time the Magic Quadrant appeared, and has itself since been acquired by HP (who was not itself qualified to appear in the Quadrant). Symantec has bought Clearwell. Epiq Systems had just increased its size and its range by the acquisition of Encore eDiscovery Solutions, extending both its software and its services portfolio, and has since added De Novo Legal which combines processing, hosting and review services. Read the rest of this entry »


An eDisclosure evening at Lord’s with Clearwell

December 19, 2011

It is quite hard to find suitable and accessible venues for what is, essentially, a talking session. The location, and any side attractions, must be interesting enough to be part of the draw, but you do not want them to dominate the occasion to the exclusion of the message you wish to convey.

Lord's Writing RoomThe Writing Room at Lord’s Cricket Ground is perfect, and made a great setting for an evening at which Robert Lewis of Barclays, Senior Master Whitaker and I talked to an audience invited by Clearwell about eDisclosure developments from the perspectives of judge and client.

I opened with some context. The eDisclosure Practice Direction and Electronic Documents Questionnaire have been in the Rules for just over a year. A recent speech by Lord Justice Jackson drew attention to a pending new Rule 31.5 whose effect would be (amongst other things) to remove the default of standard disclosure and replace it with a “menu option” which would require the judge to consider what disclosure was actually necessary and proportionate for the case. In the same speech, Lord Justice Jackson had criticised the legal profession saying that “relatively few solicitors and even fewer barristers really understand how to undertake eDisclosure in an effective way.” This had been reported in an article headed Top Beak: ignorant lawyers fumble electronic evidence, which is as good a way to putting it as any other.

We had had two relevant cases. In Omni Laboratories Inc v Eden Energy Ltd a party used the pre-trial review, eight weeks before a ten day trial, to make a major specific disclosure application, incurring £47,000 in its own costs (I have written about it here). In Mortgage Agency Services Number Four Limited v Alomo solicitors, the defendant was punished in indemnity costs for running up unnecessary costs for its opponent and exceeding costs estimates. Although not narrowly an eDisclosure case, the principles of case management and of lawyer conduct were increasingly likely to arise in and eDisclosure context (my article about this case is here).

eDisclosure was increasingly seen as an end-use of information governance. Litigants, and in particular those who litigated often, would find the courts increasingly intolerant of excuses which depended on their own poor information management, particularly if the result was a waste of court time and an increase in the costs incurred by other parties. Symantec’s acquisition of our hosts, Clearwell, was symptomatic of this increasing focus on a continuum from document retention and management through to eDisclosure. Read the rest of this entry »


Dominic Regan on Jackson and costs at the Epiq Showcase

December 7, 2011

I wrote a post in anticipation of Epiq Systems London Showcase on 8 November, focusing mainly on the scope and depth of the consultancy services and software options which are available to lawyers and their clients from broadly-based providers like Epiq.

All that and more was on display at the well-attended evening in the Barbican, and anyone who wanted to find out more about Epiq’s own DocuMatrix, Clearwell, kCura and Nuix, to say nothing of Epiq’s document review services, had ample opportunity to do so.

The highlight of the evening, however, was a talk by Professor Dominic Regan who, as an adviser to Lord Justice Jackson and official observer of the Birmingham costs management pilot, is better placed than almost anyone to tell us what is happening in the wider UK litigation world and what we can expect.

Epiq’s International Managing Director Greg Wildisen opened the formal part of the evening with a brief survey of wider developments and the expanded software and service offerings which Epiq can give following its acquisition last April of Encore eDiscovery Solutions. That done, he turned the podium over to Dominic Regan.

Dominic began by expressing his conviction that most of Lord Justice Jackson’s proposals will happen. At the time of writing (and this comes from me, not Dominic, and only emerged this week), it seems possible that they will be deferred, largely thanks to the inter-relationship between some of them and the proposed legal aid reforms which were themselves not part of Lord Justice Jackson’s recommendations (an important point this, since many people, including the Law Society, have conflated the two things, either through ignorance or because it suits their agenda). Dominic emphasised that Lord Justice Jackson was particularly and expressly against the removal of legal aid from healthcare litigation. The delay is not likely to be a long one and, as Dominic observed, the progress through Parliament is well advanced. Read the rest of this entry »


CY4OR highlights IT security risk posed by employees

December 7, 2011

Forensics and eDiscovery company CY4OR has a timely article on its blog reminding us that a company’s employees are often the weak spot in its security systems. The article, Employees are the largest risk to an organisation’s IT security, refers to recent reports by PwC and Verizon and to the government’s Cyber Security Strategy.

Recent press articles have given the impression that the focus of this strategy is protection for the Olympic Games from both fraud and terrorism. That makes a good headline, but the Cyber Security Strategy has deeper purposes than the protection of a single event, not least because civil servants seem more adept than others at mislaying data.

As with electronic discovery and other data-related matters, the services available from companies like CY4OR include both reactive and, more usefully, proactive advice. The reactive side includes, for example, the prompt examination of a laptop went which went missing briefly from a financial institution, a loss which would have triggered major notification and reporting implications if CY4OR had not been able to confirm very quickly that the laptop had not been used whilst AWOL – I wrote about that here. Such one-off exercises come in addition to the more usual eDisclosure reactions where potentially disclosable data must be collected from a range of sources and devices; CY4OR does this as well through its partnerships with Clearwell and Nuix – see their eDisclosure site here. Read the rest of this entry »


The FBI buys Clearwell eDiscovery Platform

December 1, 2011

The Federal Bureau of Investigation (FBI) has chosen Symantec’s Clearwell eDiscovery Platform for its eDiscovery investigations. There is a press release about the deal here.

Criminal investigators have much the same requirements as those in the civil fields – and the same costs pressures. They need to search and analyse large volumes of data, to review and tag them, and to make them available to others.

Government bodies are increasingly arming themselves with the ability to get ahead of those whom they investigate. Companies which have not yet got around to information governance and who possess large volumes of data which they do not control properly are frequently surprised to discover that prosecutors and regulators are equipped to find information which the company did not know it had – something it might regret when the investigator finds it first.

The FBI has now put itself in a position to do just that with people and companies who fall under its eye.

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eDiscovery Predictions for 2012 from Symantec and Clearwell

November 27, 2011

This is the time of year for predictions about the next twelve months. I tend to make mine aspirational, that is, I hope to encourage movement in the general direction of my predictions without necessarily being optimistic that they will come true.

Dean Gonsowski is eDiscovery counsel at Clearwell. Clearwell is now owned by Symantec and, if some of Dean’s predictions relate to information governance rather than pure eDiscovery, that is not just  for marketing reasons – the acquisition was itself a fulfilment of a generally-held view that eDiscovery would come to be seen as part of a continuum from document creation through archiving to the processes illustrated by the EDRM. One would have expected the subject to be on Dean’s predictions list even if he were not now part of Symantec.

As I have already recorded, Dean and I made a video together recently in Munich, and filled our time without getting onto questions about the future. We remedied that in a long phone call last week, and what follows includes my gloss on his predictions, not merely a bland recital of them.

Dean’s points came under ten headings which, he said, were given in no particular order.

1 Technology Assisted Review gains speed

Technology-Assisted Review, or TAR, has appeared from nowhere as the term de nos jours for the sophisticated technology which takes e.g. relevance input from senior lawyers or subject-matter experts to build a seed set and then applies the results across a bigger or the whole data set. Depending on who is talking, it may be called predictive coding, software-assisted review, predictive tagging or suggested coding, and both the underlying technology and the precise process varies from product to product. User acceptance has been slow, partly because of fears about defensibility, partly through misunderstandings of what it does or can be used for, partly because its validation depends on mathematical precision with which lawyers (being mostly arts graduates) do not understand, and partly because lawyers make a lot of money …oops, nearly said something tactless there (and this, I stress, is me talking, not Dean).

Dean Gonsowski believes that we are “on the cusp” of acceptance of this technology, and that we will see “an increased comfort level” from lawyers as we move into 2012. The fear, touted in a New York Times article of last March, that TAR will put lawyers out of work, will give way to an acceptance that manual review is simultaneously expensive and inaccurate, and lawyers will acquire new skills. They will “struggle with how to use it” to begin with, but will realise that there are several use cases, including many which do not involve judicial acceptance. US Magistrate Judge Andrew Peck’s recent article (free registration required) will be strongly influential in this regard. Read the rest of this entry »


IQPC Munich eDiscovery themes recur around the world

November 19, 2011

I was not sorry when my plane’s wheels touched down at Heathrow on my return from IQPC’s Information Retention and eDiscovery Exchange in Munich on Wednesday night, bringing to an end 28,000 miles of eDiscovery travel in six weeks. A few hours later, I was on my way to London to talk to a law firm about the UK eDisclosure Practice Direction in the company of Nigel Murray of Huron Legal – the e-Disclosure Information Project back on home turf. Meanwhile, US Magistrate Judge David Waxse, Judge Herbert Dixon and Jason Baron were all on their way from Munich to Washington for the Georgetown Advanced eDiscovery Institute. Within hours of my saying goodbye to Judge Waxse in Munich, tweets started rolling up my screen reporting on his contributions to a judicial panel at Georgetown.

The Problems and the Players

E-Discovery touches a lot of corners. It has multiple players: there are the companies whose data must be found and produced for court proceedings, for a regulatory investigation or for internal purposes, and within the companies are multiple duties and responsibilities which are not necessarily aligned. We have the lawyers who advise them, all too often reactively rather than in anticipation of problems. There are the judges and regulators who manage proceedings and who have an interest in efficient and proportionate outcomes. Lastly, there are the suppliers whose technology and consultancy helps address the problems. eDiscovery has many facets – an ever-wider range of data sources and types, matters of budget and reputation, and overlays of privacy and HR; the issues arise in very similar form in many different jurisdictions.

Conferences like IQPC’s Munich event provide an opportunity for all these people to discuss the problems and the solutions in the sessions, in prearranged one-to-one meetings and in less formal gatherings in bars and restaurants. One must pay a particular tribute to the two US judges mentioned above, Judge Waxse and Judge Dixon, and to the UK’s HHJ Simon Brown QC, all of whom emphasised that they came to learn as well as to speak about the issues which face court users.

Welcome to Munich

IQPC’s European events seem to get more than their fair share of external complications. Two years ago, the ash cloud prevented the attendance of several delegates, speakers and sponsors in Brussels; last year we were nearly snowed in in Munich; this year fog caused delays and, for some, re-routing via Stuttgart. Most of us got there in the end. The venue was the Kempinski Hotel Airport Munich,  a short walk from the terminals, and nothing at all like the picture which the dread words “airport hotel” usually imply. It  is a stylish place, with a big attractive bedrooms, good food, a convenient set of conference rooms and a bar which seemed to have no closing time.

I inevitably come across the occasional minor problem on my travels – screaming brats on planes, setting off without my passport, losing my luggage, or not being able to find a decent cup of coffee or somewhere to smoke. This is the first time, however, that I have heard the receptionist say “We have no booking in that name”, followed by “…and we have a big conference going on” (to get the full flavour of this, you need to imagine that it is very late at night, with cold fog swirling around what may be the only accommodation for miles). Fortunately, they found me a room. The coolness of my reception was washed away by the fact that the bar was full of the agreeable people whom one meets at many conferences. Read the rest of this entry »


Legal Support Network UK e-Discovery Briefing Paper collects expert views

November 8, 2011

The UK-based Legal Support Network has just published an interesting briefing paper about eDisclosure / eDiscovery, opening with an observation on the difference, or absence of difference, between those two terms, kick-started by Jonathan Maas of Ernst & Young.

For practical purposes, there is no difference. The long-established process of “Discovery” was renamed “Disclosure” in 1999 for reasons which made no sense at the time beyond the optimistic notion, endemic at the time, that you could improve something by changing its name. The alleged benefit, the shift of focus to what you gave to the other side, was meaningless then and has become more so as the emphasis has moved, under pressure from the volumes, to the scope of search. The terminology change also failed to anticipate that this would become a subject which crossed borders both intellectually and practically, leaving England & Wales with a confusingly different term for the same process. There is quite enough to misunderstand without frigging around with the established terminology.

My own approach, for what it is worth, is that if one is referring to the Rules themselves then one should use the terminology of the Rules but that the term “Discovery” is the proper one for the process. In practice, I generally do what I have done in my opening paragraph and use them both.

The opening article is an interview with Jonathan Maas, rightly described as “a bit of a legend” in litigation support. Jonathan was already well-known in the nascent field when I began, and that is going back a bit. You do not need me to paraphrase the article for you, but the main point, to my eye, lies in the sentences “[Lawyers] don’t need to know how to do it, just that it needs to be done.” and “law firms need to know these things can be done, to know the benefits and to be able to stand tall with their decisions…”. You cannot “stand tall” if you do not understand what you are talking about. Read the rest of this entry »


Epiq Systems Solutions Showcase in London on 8 November

October 27, 2011

Epiq Systems is holding an E-Disclosure /  E-Discovery Solutions Showcase at the Barbican in London at 4.30pm on 8 November. Its title is The Power of Options, which seems appropriate for an event which includes several leading software solutions as well as the consultancy and document review services which Epiq offers in conjunction with the technology. There will also be a seminar led by costs expert Professor Dominic Regan, adding a timely and relevant educational element to the solutions on show.

Epiq was described as a “niche player” in the Gartner Magic Quadrant for E-Discovery Software of May 2011. The word “niche” somehow implies narrow specialisation; I am not sure that it was the right word to use of Epiq in May, but it certainly seems inappropriate now that the full effect of its April 2011 acquisition of Encore Discovery Solutions becomes clear. The London Showcase will demonstrate just how broad its range is. Read the rest of this entry »


More on Software-Assisted Review as Applied Discovery and KMPG add Equivio>Relevance

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 »


Three new sponsors and HP buys Autonomy – all in a week’s work

August 20, 2011

This was never going to be a relaxing week, sandwiched as it was between a conference in Singapore and ILTA 2011 in Nashville, Tennessee. At least I had written all my Singapore articles by the time I landed at Heathrow at dawn on Monday, with their themes of judge-led litigation processes, judicial intolerance of eDiscovery unreadiness and South East Asian business and educational ambitions.

ILTA is a fixed entry in the calendar of anyone interested in litigation technology. On the surface, it is a more relaxed event than most of the others, taking place in high summer, in casual attire rather than suits, in a resort, and spread over five days. A lot happens there, however, quite apart from the fact that Nashville is a long way from Oxford, England or, indeed, from anywhere – the journey time is the same as to Singapore with the added excitement of having to change terminals at JFK.

Like certain other things – conflicts between my sponsors, the revolting coffee on aeroplanes, and the unwanted attentions of legal PRs – these things go with the territory which I have staked out for myself, and are a small price for involvement in a global business which is worth billions, which I am passionate about, and which is occupied by interesting and likeable people. it is also a young industry, with the opportunity which that brings to make the weather and not merely to report on it.

What makes that possible is my involvement with those companies whose logos appear on the right-hand side of this page. Between them, they cover the full range of software and services used for electronic discovery in every jurisdiction in which discovery is a relevant concept. Their sponsorship does more than provide the time to write and the opportunity to go where the action is. It also gives me a direct line to the senior people in the industry, and the ability to get involved with the development of rules and the connections with judicial thinkers, things which do not of themselves create a viable business.

The addition of three new sponsors in one week may be a coincidence; I think in fact that it tells us something about the state of the eDiscovery and information governance market and the direction in which it is going. Read the rest of this entry »


Strong eDiscovery behind the Q2 numbers at Epiq Systems

August 8, 2011

I have made it clear in an earlier article that analysing the detail of company accounts is neither one of my strengths nor my interests. One has to pay some attention, however, to an announcement which reads Epiq Systems announces 2011 second-quarter results led by eDiscovery operating revenue growth of 96%.

Epiq Systems acquired Encore Discovery Solutions on 4 April 2011, so this quarter’s figures are complicated, on the one hand by acquisition costs and on the other hand by a new revenue stream. I will leave you to read the figures for yourself, but I draw attention to the emphasis given in the notes to “the strength of Epiq’s organic growth across the heritage eDiscovery business”. Epiq was doing well anyway, in other words, even without the Encore business. When the two strands are added together in a strengthening eDiscovery market, the results are impressive.

As always, I am more interested in what we can deduce about the market generally than in any one provider’s figures, and more interested in what the company’s senior people say in conversation than in the necessarily stripped-down accounts notes. I pick Epiq in part because it  provides a balance to the spate of articles from me and others whose focus has been the sophisticated technology of predictive coding. I have another long article coming up on that, but it is important to emphasise (as I have done in my articles) firstly that not every case needs a sophisticated technology solution and secondly that the key lies in understanding the range of options available. Epiq’s IQ Review process and its proprietary review tool DocuMatrix offer predictive coding by the incorporation of Equivio’s Relevance product. They also, however,  have a document review service and, with the acquisition of Encore, open the door to a wide range of applications – an antidote, therefore, to the idea that it is predictive coding or nothing. I will have more articles to similar effect shortly.

I spoke to Greg Wildisen, Epiq’s International Managing Director, and he went straight to this point. He did not give me the details, but a recent case handled by Epiq had required that a population which grew to 80,000 documents over the short life of the project had provided a good example where the balance of time and cost considerations had required a concomitant balance of human review and technology. Neither would necessarily have done the job on its own within the budget and timeframe, but a consultative approach and good project management had brought in the right resources at the right stages to get the job done. This is a point which goes wider than just Epiq – someone must have an overview. Read the rest of this entry »


CY4OR web site brings forensics to lay lawyers

July 15, 2011

A nice reference has turned up on CY4OR’s website to supplement the words like “professionalism”, “expertise” and “excellent” which recur amongst their testimonials. The one I like reads as follows:

Professional and prompt service and able to “dumb down” the technicalities so that they are understandable to computer illiterates like myself

Another reference includes the words “a personal element”, which ties in with my strongly-held view that personal connections are a key differentiator in a market where it is hard for any of them to find new words to describe what they do.

This is not in fact what took me to the CY4OR website. I went there to capture a couple of blog posts which Bethan Williams put up at the beginning of June and which, like all blog posts, have disappeared from the top of the list. They are summaries, in terms intended to be understood by laymen, of the main purposes and benefits of engaging a forensic investigations company like CY4OR.

One is headed Computer Aided Fraud Detection and Investigation Tools and the other is called Recent Developments in Computer Forensics Analysis. Being “computer illiterate”, as the referee describes him or herself, is not itself the problem. The problem lies in not spotting the possibility of finding (or losing) evidence at the right time in a case, and knowing where to turn for help with that. These articles recur in the current edition of CY4OR’s newsletter – this is called Digital Exposure, and you can sign up for it on the CY4OR site.

I am writing a paper for CY4OR which focuses on what lawyers need to know in a broad range of circumstances, including some which are not necessarily obvious. Amongst the testimonials, for example, are a couple which refer to the use of forensic evidence to disprove something or to acquit someone wrongly accused of some computer misuse. It is worth emphasising that computers can hold many clues which may overturn apparently strong but circumstantial evidence, as well as for finding or proving a case.

CY4OR are certified Clearwell partners and the latest entry on the CY4OR blog, headed A More Comprehensive eDisclosure Solution, covers the acquisition of Clearwell by Symantec which has just closed – I wrote about that here. CY4OR will be very pleased to show you what it is which prompted Symantec to buy Clearwell for $410 million.

A pedant writes: “What is a lay lawyer?” Mike Taylor challenges my use of the word “lay” in my heading. He is not wrong to tease on the subject, but I ain’t changing the thing which connects this post to Google’s indexes. “Lay” in this context means “not expert”; lawyers may be expert in the law but, like the giver of the testimonial referred to, not expert by their own admission in some discipline needed to pursue an aspect of engaging in their profession. That is what the article is largely about, and that is why the word “lay” appears in its title.

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Predictive Coding Wars: Recommind Contra Mundum

June 19, 2011

It is a novel experience to spend a whole Saturday writing a 4,330-word article whose conclusion is that none of its subject-matter is really very important to one’s readers, however much it means to the participants in the story.

Sink the BismarckIf you have come to see me take sides in the predictive coding war of the last few days, you will be disappointed. My job is enlightenment: picture me, if you like, as a small boat sailing between the double line at Trafalgar as the shots fly overhead, trying to give an update on the state of the technology being used rather than a partisan account of the battle. Actually, it has been more like Sink the Bismarck, with enemy ships and planes great and small all directing their fire at one target. Fortunately for Recommind, playing the Bismarck in this scenario, we don’t get to see the final reel.

For those who do not know, I am funded on a flat-rate basis by sponsorship from the companies whose logos appear on the right. Anyone who expects me to take sides misunderstands the nature of my role. It is not just a matter of not biting the hand that feeds me, nor of holding the ring between them when they start fighting each other. The aim is to try and shine a steady light in the darkness for the benefit of those who must get on with the job of managing electronic discovery / disclosure, and to keep it burning whatever is going on around me. I do not actually think that the market gives two hoots for this battle or its outcome (if there is one), but it may be helpful to have a distillation of the debate, if that is not too dignified a term for it.

While we are on disclosure of interests, I should say that I know nearly all the people mentioned here apart from Henry V, Hamlet, Alice and Humpty Dumpty, Houdini, Pontius Pilate, Tom, Dick and Harry, Lt Farley (late of the Confederate Army) and a couple of the referenced authors. Read the rest of this entry »


The Gartner Magic Quadrant for EDiscovery Software and other EDiscovery Market Matters

May 31, 2011

As I have often said, I am content to stick to my own part of the e-Disclosure / e-Discovery world and leave others to theirs. Deciphering market trends is the job of analysts; journalists can react quickly to news; the clammy dead hand of the industry press release, with its boilerplate verbiage and breathless hyperbole, can find its way round the world in minutes without any help from me; earnest lawyers can deal with properly foot-noted and referenced reports of cases. My role requires me to pull together such of the threads as will encourage lawyers to make the best use of the rules and of the technology to reconcile their clients’ objectives with the requirements of the courts, helping them to understand just enough of the technology to know what is available and broadly what it does.

May is always a busy time, thanks to IQPC’s information Retention and eDisclosure Management Summit in London and Guidance Software’s Computer Enterprise and Investigations Conference (CEIC) in the US, both of which always take place back to back on opposite sides of the world; one year found me rushing straight from Gatwick to IQPC, where I was caught sleeping through a session – fortunately, not one of my own.

This May has brought in addition the Gartner Magic Quadrant for E-Discovery Software, Autonomy’s acquisition of Iron Mountain’s digital assets and Symantec’s purchase of Clearwell, all on top of Epiq Systems’ acquisition of Encore Discovery Solutions in April. Tens of thousands of words have been written about these things, any one of which would be significant in any month, let alone all of them together. What do they mean for the lawyer, whether in-house or external, who has responsibility for managing electronic disclosure? Is there much to add to what has already been said?

Probably not, but it is worth gathering some of the threads together, using the Gartner Magic Quadrant as a background source. Gartner’s authority in this area needs no endorsement from me, and it is probably not necessary for me to say that I know both the authors, Debra Logan and John Bace. I am, of course connected with many of the names which appear in the Magic Quadrant as well as many who do not. Having pointed you to it, I do not feel the need to mention everyone who appears in it, sticking with those which illustrate some point beyond their bare appearance there. Read the rest of this entry »


Getting on with the basics at CEIC as the eDiscovery world spins a little faster

May 20, 2011

I could sit here all morning trying to come up with a succinct heading which captures everything which is going on in eDiscovery / eDisclosure at the moment. The big things happening at a corporate level have greater long-term significance than mere changes of ownership, but the conferences, the articles, the cases and the rest don’t stop because of them. I have been at back-to-back events – IQPC in London and CEIC in Orlando, with a panel about the Bribery Act at Pinsent Masons with thebriberyact.com in between; there is more coming up. My heading, workmanlike rather than inspired, reminds us that this everyday stuff goes on daily whilst a bigger game plays out in corporate board-rooms.

I wrote up IQPC before I left for Orlando and will write about the Pinsents event and CEIC shortly. I rarely post things (or even tweet) when I am away, and this short piece is just to confirm that I am still (or again) at my post. The sentry duty analogy is deliberate: just before I left, Autonomy bought Iron Mountain’s digital assets; Gartner’s Magic Quadrant for eDiscovery Software came out whilst I was in Orlando; I had just parted company with Eddie Sheehy of Nuix when the announcement came through of a major investment in Nuix; I dropped off for a few minutes yesterday evening (I don’t need much sleep, but whole nights spent flying have to be made up somewhere), and woke to discover that Symantec has agreed to buy Clearwell Systems (the links are to their respective announcements); the wires are full of Recommind’s announcement of a partnership with email archiver Smarsh. The international ediscovery world is spinning faster than it did last week.

These are all interesting and important and I will come back to some of them in due course. Much of it is analysts’ territory, and I am concerned more with the nuts and bolts of e-discovery / e-disclosure – what judges are thinking, what lawyers should be knowing and doing, and what practical problems face them. I will let the news stories simmer whilst I catch up with what I have been hearing and speaking about at the hands-on level. They are different strands of the same story anyway – the continuum from email archiving through to ediscovery for litigation and compliance purposes appears in both the company stories and the day-to-day practical stuff. Read the rest of this entry »


UK and US EDisclosure / EDiscovery and Compliance Commonality at IQPC London

May 14, 2011

There was something for everyone at the IQPC Document Retention and EDisclosure Management Summit in London this week. The Bribery Act gave added incentive for those responsible for information management within organisations; at the other end of the process, prosecutors and judges from the US and the UK emphasised that the target is not merely formal compliance with court rules but business objectives and business efficacy; in between, the technology begins to appear – at last – as a tool to support the business and procedural requirements and not, as it used to, as a free-standing objective of its own.

We have also finally eradicated the impression that US judges, providers and practitioners are missionaries come to civilise a backward race. We are all in this together, thanks to four specific facets of globalisation: the need to collect data worldwide and the privacy conflicts which that brings; the fact that the dominating new technology for creation and dissemination of data (of which Twitter and Facebook are but two examples) goes global immediately; the convergence of thinking on court-led procedural matters such as co-operation and proportionality; and now the Bribery Act, matching and exceeding the reach and the implications of the US Foreign Corrupt Practices Act. One US visitor said that she had gone away from a previous conference wondering why she had crossed the Atlantic simply to hear other Americans speak; there are still plenty of them here, but their contribution now brings a world view, not merely a US one, to what has become a much more collegiate group of experts.

As always, I went to relatively few sessions beyond the six in which I took part because I use these events as an opportunity to talk to as many people as possible. I mention this not merely to justify my failure to report comprehensively on the whole conference but to emphasise a hidden value in these events, and an overlooked justification for time taken out of the office. Unclear about some particular technology and whether it its use is likely to be acceptable in a court? Talk to a few people who provide it and then to a judge. Not sure whether your company is ahead or behind others in compliance matters? Have a chat with people who hold parallel roles in other companies. There is much more to these events than one-way communication from the platforms. Read the rest of this entry »


You do not need the fear of sanctions to get value from legal hold software

April 19, 2011

I am doing a panel session on Day 2 of the IQPC Information Retention and EDisclosure Managemement Summit with Ronke Ekwensi of Pfizer. Our subject is ESI preparation and preservation: Assessing – and addressing – your eDisclosure Liabilities. One of the aims is to cover the differences between the US and the UK approaches to preservation and to legal hold and I have been putting some slides together. It seems worth giving it a preliminary canter here.

Clearwell is the latest US ediscovery software company to produce a legal hold module, the logical extension to the existing components of its EDiscovery Platform. This is becoming a standard component of ediscovery applications – Guidance Software was, I think, the first to integrate such a module over two years ago.

A US lawyer needs no explanation of the importance of legal hold. It formalises the duty to preserve documents and records that an organisation “knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation”. This quotation comes from Mosaid v Samsung of 2004 and remains a good base definition although a lot of water has flowed under the bridge since then. Critics complain of the use of the word “reasonably” in qualifying both the expected state of knowledge and the degree of foreseeability, but none has come up with an alternative way of defining the trigger for preservation (though serious attempts are being made to improve on this).

The formal trigger in England & Wales is the issue of proceedings. Destruction before issue brings penalties only in limited circumstances involving an objective to interfere with future litigation and a positive act as opposed to an omission; further, the documents must be relevant ones, that is, ones which might have made a difference. The key issue is whether a fair trial is possible despite the destruction of the documents. Taking all this together, it is quite hard to attack another party for alleged spoliation before the commencement of proceedings. That said, the parties and their lawyers may have to explain what became of “missing” documents and to justify their destruction.

There are differences between the scope of US discovery and UK disclosure. “Relevance” in the US includes information which is reasonably calculated to lead to the discovery of admissible evidence, where the post-1999 UK definition is the potentially much narrower test whether documents are supportive of or adverse to the case of the giver or of any other party. Read the rest of this entry »


Clearwell, ICE, FOIA and NDLON

April 18, 2011

If the jumble of names and initials in my heading means nothing to you then move along to the next article, because this one assumes that you know about it. If you do know about it, then I do not need to recite the curious story of the disappearing blog post and the subsequent retraction and apology. I watched the flow of critical comment which followed, all of which reinforced my initial reaction, which was to sit it out and await developments before joining in. I like to know how deep the water is before I wade into it.

I have seen enough of these stories to know that they have a reasonably predictable arc. For one thing, they never emerge in relation to unsuccessful companies; what gives them legs is the fear of competition, and no one bothers to attack the weak. For another, the rebuttals come in slowly, unlike in politics where much unhelpful heat is engendered by the frenetic need to get the counter-attack in at once. The critics are hampered by a lack of facts, the defenders by client confidentiality.  It is all part of the knock-about of competition, of course, and most of the players give as good as they get. Occasionally, the challenge of doing an elegant stiletto job on a rival can result in new ways of describing the benefits of one’s own product. The comments never seem to make the slightest difference to the market share of any of the players, however, inducing merely a “plague on all your houses” reaction from a generally mature audience whose buying decisions are made on much deeper grounds.

Twitter brings you every twist and turn as they happen. The trick is to filter the fact from the assertion, the partisan from the objective. The next development of substance (of apparent substance anyway) was the publication of the so-called Pavlik-Keenan Declaration which, as a formal court document declared “under penalty of perjury”, brought expectations of factual accuracy at the least. The fact that the relevant part of its story seemed inherently implausible did not put me in a position to argue with it. The comment around it was relatively muted, which suggested to me that others too were unsure how far the story would run.

Last week brought the expected article by Aaref Hilaly, CEO of Clearwell, headed Clearwell, NDLON v ICE, and the Pavlik Keenan declaration which, for the first time, allowed me to see both sides of the story (my degree subject was history, don’t forget, so I am predisposed to look for balance and the occasional solid fact). That referred to another court document, the declaration of Ryan Law which corrects those parts of the Pavlik-Keenan Declaration which struck me as implausible when I first saw it, and sets out some points which had been ignored in most of the earlier chatter.

I do not have to take sides, draw conclusions or make decisions. There is more to come on this one and, as I have suggested, a few hard facts are an indispensible component in any story. It was obviously necessary for me at least to mention it all at some point, but you will note that I have got to the end of my article without saying anything about the case itself. That is the trouble with these inter-provider spats – they take all our eyes off what really matters.

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Lawyers replaced by computers for ediscovery search – a retrospective

March 23, 2011

The dust is settling on the debate aroused by the John Markoff article in the New York Times of 4 March headed Armies of Expensive Lawyers, Replaced by Cheaper Software. We can’t have that, so I thought I would keep the ball in play for a bit with a round-up of some of the comment stirred by the article. The consensus, for those in too much of a hurry to get to the end, is that the skills matter more than technology, as long as those skills include the ability to choose the right technology for the case.

As with all good journalism, the basic premise of the NYT article appears from the heading – technology is advancing at such a rate that the expensive (and profitable) contribution made to electronic discovery / disclosure by lawyers will become unnecessary. Computers, so the argument runs, will perform searches more efficiently, more reliably and at significantly lower cost than lawyers can achieve, so the demand for lawyer hours will decrease significantly with a consequent reduction in employment prospects for lawyers.

To recap, Ralph Losey was the first out of the traps with a contrary view. His article was headed NY Times Discovers eDiscovery, but Gets the Job Report Wrong. New, highly-skilled jobs will appear, he said, and the vast increase in electronic material will counter-balance new ways of increasing productivity; a wider range of cases will need this wider range of new skills. I took much the same line in my article King Ludd and the Lawyers – e-Discovery and the Luddite Fallacy which gave a quick tour of C19th economic history and listed a range of largely non-technical and non-legal skills such as project management. Steven Levy’s article Watson Takes on E-Discovery covered the change–adoption curve and suggested that the mere appearance of such an article in the NYT marked a transition from the innovators to the early adopters. Read the rest of this entry »


King Ludd and the Lawyers – e-Discovery and the Luddite Fallacy

March 7, 2011

Since I am about to refer you to three weighty articles by others, I will keep my own comment to a minimum. The context is the ability of modern litigation software to analyse documents more quickly and more cheaply than lawyers can. This was the subject of my own recent article The relevance of a computer called ‘Watson’ and a television game show to electronic discovery, which sought to explain in non-technical terms what you can expect from modern litigation software applications. The articles to which I now refer you take the discussion one stage further – if software can perform some of the functions of lawyers, and do so quickly and cheaply, then what are the prospects for lawyers? If the first stage of user acceptance is that the lawyers should understand what the software does, then the next is to emphasise that this is a promise of better things, not a threat. The argument takes us back to the machine-breakers of the early 19th Century and the economic theory named for their putative leader, Ned Ludd.

The discussion was kicked off by an article in the New York Times on 4 March. Headed Armies of expensive lawyers, replaced by cheaper software, it covered much of the same ground as my article, including references to ‘Watson’ and Jeopardy! and the marshalling of large teams of lawyers. Where I referred to lawyers having “hangovers, lovers, debts and day-dreams to distract them”, the NYT article said “People get bored, people get headaches. Computers don’t”. The NYT author, John Markoff, and I are clearly barking up the same tree at least in the identification of the technology trends. We differ as to the outcome or, rather, I see survivors and beneficiaries where Markoff emphasises losers Read the rest of this entry »


Clearwell white paper: the Next Generation of Concept Searching

February 18, 2011

A recent article by US ediscovery expert Tom O’Connor discusses the ever-green subject of ediscovery certification. One of the points he made was to do with understanding basic concepts before we get too ambitious in describing (still less certifying) proficiency in wider aspects of ediscovery skills. He gave as examples questions like “what is a tiff” and “what is a native file?”

The next tier up from simple descriptive terms like this are the technical terms which the experts bandy about between themselves as if they were common currency. A good example of this can be found in the various types of search technology which have been developed to handle large volumes of documents.  I have a list of them on one of my slides and do my best, along with many other subjects which I cover in a rapid-fire one-hour talk, to give the audience the briefest summary possible of what “predictive coding”, “e-mail threading” and “clustering” mean.

All these technologies, and others, serve different purposes to the same end. They vary in sophistication (although, of course, an apparently simple function in user terms may have an extremely clever algorithm below it). On the face of it, “concept search” is easier to describe and to understand than some other technologies. After all, we have had Roget’s Thesaurus since 1805, so the idea of semantically-linked words is not new.

Clearwell has produced a white paper called The Next Generation of Concept Searching to back their Transparent Concept Search functionality. It describes in straightforward terms why simple keyword searching is an inadequate way of finding relevant documents, using the multiple meanings of the word “strike” as its prime example. Very large sums of money, and not a little risk, turn on doing the best job one can of finding documents required in litigation and analogous proceedings, and I commend this paper as a straightforward guide to what concept searching is and why it helps in 21st century document search.

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Epiq Systems and Huron Consulting as Angels for US-UK e-disclosure play at LegalTech 2011

January 27, 2011

An “angel” in theatrical terms is someone who puts money into a play or film. Many productions would not happen without such support. I have already mentioned the judicial play which we are putting on at LegalTech and which consists of light-hearted scenes based largely on recent UK e-disclosure cases. Epiq Systems and Huron Consulting Group have kindly given the support which makes this possible.

The play – really a series of loosely-linked scenes – is an adapted version of something we did at IQPC in London last May and which, despite the levity, has the serious purpose of creating a better understanding on each side of the Atlantic of what happens in the other jurisdiction.

We have an all star cast. US Magistrate Judge Elizabeth LaPorte and US Magistrate Judge Andrew Peck play a composite judge called Fluffy. Fluffy may sound a soft touch, but those who know the first Harry Potter story will know that Fluffy is extremely fierce and guards a mystery which no one else understands.

There is, in fact, a subliminal point about Anglo-US terminology here: that book was called the Philosopher’s Stone when published in England but was re-named the Sorcerer’s Stone in the US version, apparently because the US publisher thought that children would be put off by the word “Philosopher”. US distributors have a habit of under-estimating their public (is it really true that the film of Alan Bennett’s play The Madness of George III had to be called The Madness of King George because of the fear that American audiences would think that they had missed the first two films in the franchise?). Much the same patronising logic underlay the 1999 UK rule change which abandoned the word “discovery” in favour of “disclosure”. The point is not that this jettisoned several hundred years of tradition, but that the word “discovery” embraced both the “uncovering” of your documents to opponents, and the prior, and very much bigger, exercise of finding out what you have. The proper term therefore became more, not less, appropriate as search became the dominant requirement. Those of us with feet on both sides of the Atlantic must refer continually to both terms. Read the rest of this entry »


Clearwell White Paper: the new Practice Direction and e-Disclosure

December 8, 2010

Clearwell Systems has published on its website a White Paper which I co-wrote with them with the title The New Practice Direction and e-Disclosure: Best practices for Complying Proportionately (registration required). Its purpose is to set out recent developments in UK electronic disclosure and to show how Clearwell addresses the requirements which arise as a result.

I can give you the flavour of it by quoting part of its summary:

If you take together the outcome of the cases mentioned above, the requirements of the Practice Direction, and the model for case management provided by the Goodale decision, you see a requirement (and it is a requirement of competence and proportionality as well as a formal requirement of the rules) that parties to litigation assemble and exchange sufficient information before the case management conference to enable themselves, their opponents and the court to make the “proportionate and cost-effective” decisions needed to control electronic disclosure. A part of achieving this goal are the four main considerations laid out in the Practice Direction and summarised above.

Before you can make decisions about narrowing the scope of disclosure, you must know what you have got, be able to evaluate which of it is worth picking out for full review, and be equipped to debate value against cost with opponents. The next section of this paper considers how this might be done as a matter of best practice using Clearwell Systems’ software. Read the rest of this entry »


From Clearwell in Cornhill to Millnet on Millbank via Memory Lane

November 10, 2010

I went to Millnet’s 15th birthday party on Friday and, in consequence, wound up with very sore feet. That is not the non-sequitur which it may appear to be. The day began with an e-disclosure talk and ended with an e-disclosure party, but included a long walk and took in some recollections of the past and ruminations on newly-admitted solicitors, Apples (and other fruit and veg), the right to take photographs in public, and other things touching on my wider interests.

The e-disclosure element came with a meeting with Clearwell’s UK team, where my purpose was to bolster their roles as allies in the spread of understanding about electronic disclosure. Relatively few lawyers seem to know the rules, including many of those who rail against the new practice direction and the alleged burden of its questionnaire without apparently having read either of them. There are also many who assert that the technology for handling electronic documents is expensive, without either suggesting alternative methods (just ignoring them does not count) or making a telephone call or two to find out what the cost might actually be. More subtle, and harder to grasp in some ways, is the very close relationship between what the rules require and the range of technology solutions which exist. If the lawyers need to understand this inter-relationship, then so do the solution providers, which is why I am always happy to talk to them.

My broad theme is that there is a higher discretionary element in the rules than people realise, and that there is more to the technology than a bare recital of functions and benefits may suggest. There is a close match between the obligations of transparency and cooperation required by the rules and the ability of he technology to help the lawyers to assess the relationship between value and cost – the components of proportionality. Proper use of the right technology allows the lawyers, for example, to test the effect of adding or removing keywords from the list being discussed with opponents. If the technology can show that the inclusion of a particular keyword will add 50,000 documents to the disclosure set without any obvious benefit in terms of the evidence, then there is money to be saved – an obvious example of technology as a facilitator of informed discussion. Read the rest of this entry »


A useful guide to sources on EU Data Privacy Laws

November 8, 2010

The Guidance Software Newsroom carries a new article by Denise Backhouse of the eData Practice of Morgan, Lewis & Bockius, LLP headed Master European Data Privacy Laws. I refer you to it because it is expressly intended as a guide to useful sources of information on EU data privacy and data protection, a subject which exercises many US lawyers but not, apparently, to the extent that they feel the need to learn about it in advance of their next major EU data collection exercise. Denise’s article may help them to understand what the issues are.

One key to understanding the problem is to know that no one has all the answers, and Denise rightly draws attention to the need to take local advice in each jurisdiction in which the data may have to be collected. As she points out, a “jurisdiction” is not just the whole EU, nor merely any legal state within the EU, but can include smaller units like individual Länder in Germany. Knowing even that much is a good start for those who tend to approach EU data collections as if the writ of an American court runs everywhere.

Denise and I were on a Guidance Software panel at IQPC’s conference in Brussels last year, and were more recently on a London panel organised by Recommind. The subject comes up again on a panel I am on at Georgetown on 18th and 19th November, and Denise and I are covering the subject, together with Master Whitaker at IQPC’s Document Retention and EDiscovery conference in Munich starting on 29 November. I am moderating, and Denise is the main speaker, as befits her status as one of the few US lawyers who is authoritative on the subject. Master Whitaker will talk about the use (and misuse) of the Hague Convention, and I will talk about the cultural differences which lie at the root of the conflict between US demands for documents and EU unwillingness to part with them.

You need practical as well as legal help when stepping into the deep waters of EU data collection, and that means a technology supplier with experience in the area. Sticking to those who have come to my attention recently (so don’t all write in if I have missed you off my list), FTI have recently announced a new consultancy service FTI Investigate aimed at helping with EU collections, I have written a paper (not yet published) about Iron Mountain’s services on this subject, Epiq Systems has a fully-staffed office in Brussels, and Trilantic (now part of Huron Consulting Group) has a section of its website which links to the laws of every relevant jurisdiction.

Look, perhaps, at the list of those sponsoring the IQPC Munich event referred to above which, in addition to most of those already mentioned above, includes AccessData, Alvarez & Marsal, Clearwell, Commvault, Ernst & Young, KPMG and Symantec. They will be there because this is territory which they know, so ring one (or more) of them up before you pack your bags to set off on what may appear to be a routine data collection exercise. But perhaps read Denise’s article first, and follow some of its useful links.

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Getting back to the e-Disclosure day job

November 3, 2010

Although it may seem that I spend most of my time in the departure lounges of the world, travel is a relatively small element of a typical month’s work. I am back to the meetings, the platform and media opportunities and the writing which fulfil my obligation to find out about e-disclosure problems and solutions and to try to match the one with the other. The travel informs that, but it is not an end in itself. I take the opportunity to summarise what the ends, and the means, are so far as I am concerned.

Douglas DC3Some semblance of normality descends after a month which kicked off with the launch of the UK eDisclosure Practice Direction and included visits to Washington, Toronto and Singapore. It would be easy to get the impression that travel is my main activity, but last month is, fortunately, not representative. I clocked up 27,936 air miles (the distance around the equator is 24,783 miles), and two of the conferences involved a fair amount of activity – planning in advance, taking part in sessions, and writing them up afterwards. This is, nevertheless, an activity which is ancillary to my main role.

Many years ago, I did a stint in Uzbekistan for an EU-funded project. One of the legacies of that is the deep hatred of the whole EU institution which you may have detected – the waste, the expensive, self-serving bureaucracy, and the very strong feeling that a large group of elected representatives and appointed officials have created an interfering monster whose primary function is to give them lucrative employment. The other legacy is that, for years afterwards, many people assumed that working in Tashkent was my main occupation, whereas it was in fact run in parallel, and only briefly, with litigation software development and consultancy work in the UK.

The same is true of the trips I do now – they are important, interesting, non-trivial in time terms, and allow a two-way traffic in understanding e-discovery problems and solutions, but they are not my main function. They are not compatible with writing, for which I require absolute silence, no distractions and a good supply of coffee and cigarettes, none of which are available on aeroplanes. Read the rest of this entry »


Roundup of The Masters Conference 2010

October 11, 2010

“We have been travelling since we saw you last. We have been in America, entertaining the Americans whose need, let’s face it, is greater even than yours. Of course when we’re over there we say that the other way round”

That is how Michael Flanders opened Flanders & Swann’s second selection of comic songs At the Drop of Another Hat in London in 1963. They seem successfully to have crossed the Atlantic divide despite a style which was rooted so firmly in English traditions of education and culture that it more or less excluded the Welsh, Irish and Scotch; the verses to their Song of Patriotic Prejudice – “The English are best” (lyrics and video) would today bring complaints from some humourless official who would investigate it as incitement to racial hatred and arrange a compulsory diversity course. Fashions change in these things – has Hollywood at last given up casting a well-spoken Englishman as the villain in every film? The devolution of powers within the UK, the subservience to Europe which culminated in the Treaty of Lisbon, and Blair’s shameful grovelling to Bush have left us without influence in areas which we used to dominate. Perhaps that is why I am so keen that we should be heard in my own field.

I am just back from Washington, where Master Whitaker and I flew the English and Welsh (but not Scottish or Irish) edisclosure/ediscovery flag at the Masters Conference.  We were joined by an Australian judge, Justice Einstein, of the Commercial List in the Supreme Court of New South Wales.  I am not sure that anyone in the US would have been interested two or three years ago. Before then, as I said in opening my International Judicial Panel, US judges would come to London to tell us, in a rather de haut en bas way, how we should be handling electronic discovery, and English lawyers and judges reacted by disdaining the whole subject. The tide turned with a judicial panel which I organised with Guidance Software in 2008, when we put Judge Grimm and Judge Facciola from the US on a panel with Master Whitaker and HHJ Simon Brown QC from the UK. Since then, we have tapped into and shared not just each other’s thinking, but the developments in other common law jurisdictions; bringing Justice Einstein from Australia to a US platform marked a further step towards pooling judicial thought on this shared problem.

The Masters Conference has grown over the same period to be a very good forum for just this level of thinking. It is big enough to attract a good range of speakers, delegates and sponsors; it is thoughtful without being overbearingly intellectual; the mix of law, technology and practicality is about right; it recognises the importance of local interests without forgetting that there is a wider world out there which is important to US interests both as a market and as a source of ideas.

I give a brief account of the sessions which I attended – I usually do separate posts about individual sessions, but there were thematic links running through them which then would be lost. Read the rest of this entry »


Turning e-discovery news and views into a community of interest

September 21, 2010

Those of us who work in e-discovery / e-disclosure get better and better at passing information and views between ourselves.  Web sites, blogs and Twitter allow us to keep up with developments – new products, company news and cases – in a market which changes all the time. Improvements in the mechanics of information delivery do not make it easier for new readers (which is the audience which matters) to understand it all. Can we turn this stream of information into a community of interest?

The word “community” has been hi-jacked by the woolly thinkers of the soft left. Private Eye runs a regular column pillorying those who write of meaningless “communities” whenever two or more people have some characteristic in common.  The expression “community of interest” has a meaning worth keeping, however, and is correctly used (and hard to replace) when different groups have common ground. The one in which I am interested is the loose assembly of lawyers, their clients, judges and technology providers who aspire to the proportionate use of electronic documents in litigation. That aspiration is purely notional in many cases, mainly because many of the players do not fully understand what the others need or can offer.

This article began as a way of covering many apparently disparate pieces of news or information in one place. As I wrote it, themes began to emerge which mapped on to some of the conversations which I have with lawyers seeking a quick ramp into the broad options which they face when e-disclosure becomes inevitable. We who have grown up as the industry grew up throw names and terms at each other, as if the audience shared the building-blocks of knowledge. They do not. Running several stories together may make for a long article, with loops and digressions as I expand on things which seem obvious to industry regulars, but those to whom it is all new may find that helpful.

One of the links which I intended to pass on anyway happened to be an interview in which Richard Susskind argued for better use of social media and for the development of a community of interest between the participants in the wider legal IT industry. That neatly tied in with my plan to base this article round a series of tweets, and suggested by extension that Twitter provides a ready-made core for such a community. It does so already for those on the inside. We need to invite the users in. Read the rest of this entry »


ILTA 2010 wrap

September 3, 2010

This is my third (and last) article about ILTA 2010 Strategic Unity which closed in Las Vegas last week. My first article was a scene-setter, designed to give the flavour of the event and to explain why I thought it important for the UK to know what is going on in the legal technology market. The second article was largely devoted to the two sessions which I attended, on defensibility and on cloud computing. This article is about some of the people, companies and products which I came across.

I am not here solely concerned with my home market, the UK, but that well illustrates the growing need for lawyers to know something about the range of legal technology providers. The cumulative effect of the new practice direction and electronic documents questionnaire and of some recent cases (the ones I characterise as the “incompetence cases”, turning more on sloppiness and ignorance than on fine points of law), is that many UK lawyers will make their first acquaintance with electronic disclosure during the coming year. It is not, of course, that the problems have been invented by the cases or by the changes to the rules; most potentially disclosable documents are electronic, and few cases can be conducted proportionately by printing and reading them all.

If many UK lawyers will make their first call to a provider of litigation software or services for the first time over the next 12 months, their US counterparts will be making similar calls. The US case law continually raises the bar, not because it is binding on other courts, but because it redefines the standard of care expected of lawyers generally; clients expect more for less in the US as in the UK; the technology evolves continually; every player snipes at its rivals’ costs models, but competition keeps overall costs stable at worst; companies merge with and acquire each other, and individuals move from one provider to another. It is hard enough to keep up even if you already have experience of electronic discovery. Read the rest of this entry »


Welcome to Clearwell as new sponsor of the e-Disclosure Information Project

August 6, 2010

It is a great pleasure to welcome Clearwell Systems as the latest sponsor of the e-Disclosure Information Project. Given Clearwell’s present standing in the eDiscovery market, it is hard to realise that it was founded as recently as 2004 and had therefore been going only three years when I set up the Project.

How does one measure a player’s “standing in the eDiscovery market”? I do not purport to be an analyst, so my use of the word “standing” implies no comparative statistics or detailed research. One can look at Clearwell’s “Strong positive” rating from Gartner in 2009, and its “Top 5″ supplier ranking from Socha-Gelbmann in 2008, an the logos of its users on its home page – BP, Microsoft, Toyota, Walmart, FedEx and others – act as kind of reference, but my sense of their standing does not derive entirely from these things either. Nor do I get it just from the references which Clearwell attracts – a quotation from KPMG’s Paul Tombleson referring to the “simplicity and speed at which Clearwell processes data” appears on its home page, and Legal Inc’s web site carries an article called Legal Inc and Clearwell – cutting complex projects down to size .

What I am talking of is a less tangible sense than one gets from such hard factual sources. Clearwell gets mentioned a lot, amongst those who are potential users and amongst rivals, and in a way which conveys ubiquity; for the benefit of non-Latinists, that means they turn up everywhere. This goes beyond their appearances on product selection short-lists. Clearwell is, in addition, a regular and informed commentator on the market, with an active blog, a range of useful white papers, and tweets which do more than merely promote its own products. They also support TREC, the Sedona Conference and lead several EDRM projects. Read the rest of this entry »


Australian ediscovery round-up

June 28, 2010

My conclusion after my recent visit to Sydney was that every jurisdiction which engages in ediscovery thinks that it is behind the others. This is certainly not true of Australia, and  Master Whitaker and I were not merely being polite when we said that we had come to find out what is happening there for our own benefit, as well as bringing news of developments in the UK.

There is enough going on down there at the moment to warrant a quick summary. My own accounts of our visit to Sydney are here and here,  and I wrote before I went of the Attorney General’s Terms of Reference for a Discovery review.

Since then, Geoffrey Lambert of e.law has tipped me off about a further development, the Civil Dispute Resolution Bill 2010 (Bill) which, if enacted, will require a “Genuine Steps” process by which parties must show formally that they have tried to settle a dispute, with costs implications if they do not do so. I am slightly chary of developments like this – the experience in England & Wales of court-driven settlement is that the mechanics of managing the dispute take second place to attempts to impose a rapprochement which is itself expensive and not necessarily what the parties want.  There is a distinction (for which we must thank Professor Dame Hazel Genn QC) between “a just settlement” and “just a settlement”, and there is a difference too between mediation to resolve a dispute and co-operation to conduct it efficiently.  If judges spent less time on the former and more time imposing the latter, we might see the costs of litigation come down whilst allowing the parties to have their day in court. It will be interesting to see if Australia can take the benefits of alternative dispute resolution without losing the drive towards more efficient procedures for managing contention. Read the rest of this entry »


IQPC Corporate Counsel Exchange in Brussels 18 – 20 April

April 12, 2010

I am off to Brussels at the weekend for IQPC’s Corporate Counsel Exchange. The format for this conference is rather different from the conventional series of panel discussions and platform speeches – there are plenty of these, but the primary purpose of the event, as its name implies, is for the exchange of ideas rather than merely their promulgation. The speeches and panels serve as the catalyst for business meetings and round-table discussions.

This format seems to be appreciated both by corporate counsel on the look-out for ideas and answers and for those who have software and service solutions to offer. Amongst the latter are Epiq Systems, Trilantic, Kroll OnTrack, Applied Discovery, Clearwell, LexisNexis and Wolters Kluwer, who should between them cover pretty well all the bases.

I am going to it for various reasons, none of which, for a change, is a speaking commitment. This session which interests me most is a case study led by Greg Wildisen and Mike Brown of Epiq Systems and by Vince Neicho of Allen & Overy. The title is Your company has just been raided and an investigation is under way. Have you an effective strategy to focus your resources on only the most relevant documents? Read the rest of this entry »


eDiscovery April Fools

April 1, 2010

I have already written about Applied Discovery’s Reviewitter.  CaseCentral came up with the first eco-embedded, carbon-neutral, green platform for environmentally efficient eDiscovery. Good stuff, albeit slightly undermined by the fact that so much verbal effluent is tossed out into the ether by the green lobby that it defies parody.

Clearwell, who have form in this area, have managed to take advantage of the near-coincidence of the iPad’s launch and All Fool’s Day to produce a video called Clearwell for the iPad. Funny for itself, it also sends up all those words which I hate in press releases – the words “a magical, fantastic, awesome, earth-shattering, revolutionary device” could have been lifted almost verbatim from some PRs which I have seen which did not have the excuse of inclusion in a parody.

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Legal Inc case study explains an e-Disclosure project

February 16, 2010

Statements of functions and benefits and descriptions of litigation support services obviously form the backbone of the marketing material of any company engaged in the handling of electronic documents. It is difficult, however, to convey in the abstract any sense of what is actually involved for the benefit of those who have not been confronted with a case which requires urgent action. What we need are case studies, examples of real life projects which put flesh on the bones, as it were, of the process involved when litigation or a regulatory investigation must be handled promptly.

Legal Inc has done just that with a case study involving its use of Clearwell on a large and urgent project. The article is called  Clearwell and Legal Inc: cutting complex projects down to size. Read the rest of this entry »


Packed programme for Masters Conference

October 9, 2009

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

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

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


How was ILTA for you?

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.

Gaylord National

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 »


Welcome to Legal Inc as e-Disclosure Information Project sponsor

April 1, 2009

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

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

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


Catching up with KPMG

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 »


How TREC can help you evaluate e-discovery investments

March 17, 2009

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

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

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

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


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