Identifying opportunities at the second ALM – ILTA Legal Technology Summit in Hong Kong

April 28, 2014

AsiaTechSummitALM and ILTA brought their second Asia Legal Technology Summit to Hong Kong in March. I make no apology for reporting on this event several weeks after it took place. I went on a long trip to the US almost immediately after it, and UK events have kept me busy since. The output includes photographs and video as well as words, and these take time to process. Besides, these big events have significance which lasts beyond the day itself. As it happens, I am back in Hong Kong this week for another legal technology / eDiscovery event; the fact that Hong Kong can support two such events so close together is itself interesting.

Henry DickerAs with last year, the event was held in the JW Marriott in Hong Kong, one of the more attractive venues for such conferences. Welcoming speeches were made by Henry Dicker, CEO of LegalTech (right), and by Barry Wong of sponsor Consilio (below). Both emphasised the increasing opportunities which Hong Kong offers to those with expertise in electronic discovery and other areas where legal services matter.

Barry WongConsilio, for example, is a global company with offices and data centres in North America, Europe and Asia whose growth in AsiaPac reflects the fact that big clients, wherever their formal corporate headquarters, conduct business everywhere and, increasingly, in Asia. To some extent, the US heritage is valuable, not least because of its business, regulatory and technology leadership; that must be combined, however, with an understanding of local culture and practice and a sensitivity to the fact that US commercial imperialism does not necessarily travel well in undiluted form.

A recurring theme at the conference, therefore, was that business and legal offices in AsiaPac are a) much the same as elsewhere in many ways, b) are different, for all sorts of cultural reasons which are not easy to detect and c) can benefit from the experiments and the learning which has gone on elsewhere. You need feet on the ground as Consilio has, not the occasional parachutist from the US, for this to work. Read the rest of this entry »

Washington and New York to Mitchell via privacy, Singapore and Lobachevsky

February 17, 2014

The problem with running a website which offers news and updates is that people notice when it lies silent – the essence of news is that it is new. In fact, I have never aspired to timeliness and, as I say often, if it is important now, it will be important in a month’s time. This post supplements a brief note which I put up last week. Most of it is about Washington and its wonderful memorials, about the week in New York with my panels on eDiscovery technology and privacy, and about the things which got in the way when I got home. That includes some ruminations on the fall-out from Mitchell v NGN, on the unpleasant and economically-illiterate thug who carries the proud title “Lord Chancellor” and his minions at the Ministry of Justice, and on the decline of London’s aspirations to be a forum of choice for international litigants, with side references to Hong Kong (where I go next) and Singapore. There is also a bit about plagiarism illustrated by Tom Lehrer. You get variety here, if not necessarily thematic consistency.

I was at LegalTech in New York, the biggest eDiscovery industry show in the world. This was my eighth LegalTech and I know the form by now – back-to-back meetings, a couple of panels to sit on, five party invitations every night, dinners with varying degrees of learning and entertainment thrown in, and someone to talk to round every corner. This year brought the added element of sudden snowfalls leading to deep pools of slush at every crossing, particularly tiresome when your meetings alternate between the Hilton on one side of Sixth Avenue and the Warwick Hotel on the opposite corner.

Our attempts, some four months earlier, to book hotel rooms were defeated by some sporting event which apparently drew most of the US population into New York for the weekend. The cost of flights to the US falls steeply if you include a Saturday, so we went first to Washington D.C. – “we” being me, my wife Mary Ann and our youngest son William. The weather was fine and, as always, we were drawn first to the war memorials. Read the rest of this entry »

Tracking social media for eDiscovery / eDisclosure purposes

November 18, 2013

To an audience still struggling with the idea that an email is a “document” for eDiscovery / eDisclosure purposes, it comes as something of a shock to be told that a tweet or an entry in Facebook or LinkedIn is potentially no less discoverable than a Word document.

I have been writing and talking about this for some time now, most recently in a webinar with iCONECT called Social Communication: is there anything worth requesting? I covered it again at ILTA INSIGHT (the Agenda is here) in London on 14 November on a panel called Non-traditional sources of electronic evidence in the company of Fiona Morrisson of Allen & Overy and barrister Damian Murphy.

Reading around the subject in advance of the iCONECT webinar, I came across an article on the ABA Journal web site called 6 Tools to Help Firms Track Social Media. It referred to a Fulbright conclusion that more than 41% of US law firms reported having to preserve or collect social media data for eDiscovery purposes. Whilst it is true that US lawyers collect anything which moves and much more besides, the rest of us have to accept that the growth of social media, and the shift of communication from email to more volatile forms of communication, must inevitably take discoverable information with it.

The range of platforms which carry such communications grows every year. Ralph Losey is quoted in the ABA Journal article as saying that Facebook, LinkedIn and Twitter are the ones which matter. Read the rest of this entry »

Breaking the dam: barristers moving in to eDisclosure

June 3, 2013

There are over 3,800 words here, in a detailed report on Legal IQ’s Information Governance and eDisclosure Summit, so bring coffee and a comfortable chair. If you don’t have time for that, the message can be reduced to a few quotations, not all of which appear in the text:

“You have to be specific about what you want to buy” – Drew Macaulay of Consilio

“Sweaty palms”, “blood on the floor” – Judges anticipate costs management

“Look judge, here’s an idea” – Damian Murphy of Enterprise Chambers

“No estimates survive first contact with the data” – Browning Marean of DLA Piper

“Make sure your lawyers [in regulatory investigations] understand eDiscovery” – Allison Stanton of the DoJ

“What tasks are [litigation lawyers] uniquely qualified to do? – Richard Susskind

“We’re all f*****. I’m f*****. You’re f*****. We’re all completely f*****.The whole department is f*****. It’s the biggest cock-up ever. We’re all completely f*****.” - Sir Richard Mottram, Permanent Secretary at the Department of Transport in 2002.

There, that’s set the tone. You may deduce from that much that the rest of this is about costs control, about being on top of the facts and the metrics, about being inventive and able to react to changed circumstances, and about being realistic about the best way of getting the job done. The last quotation is for those who do not accept the need to think differently about the management of eDisclosure / eDiscovery.

ViewfromLancasterThe view from the Lancaster Hotel

On 16-17 May 1943, the remnants of the Dambusters squadron returned to RAF Scampton having destroyed two German dams and damaged a third. My headline came to me without direct reference to that anniversary, though it was presumably derived subconsciously from the memorial events which coincided with Legal IQ’s Information Governance and eDisclosure Summit in London. The dam which I had in mind was the conventional structure of litigation departments and the manner in which electronic disclosure is performed and priced.  I came away from the conference  feeling that, if the dam is not yet broken, it took a severe battering. Standing in for 617 Squadron was an unlikely combination of a professor, an insurer and two barristers. Read the rest of this entry »

A representative selection of sessions at the IQPC London Information Governance and eDisclosure Summit

May 13, 2013

I avoid lists, on the whole. Apart from the fact that one can sense the readers bleeding away, there is always the risk of omitting somebody or something, or of appearing to give an unintended priority to one thing rather than another.

Big conferences raise particular issues. There is no point in itemising every event – I might as well simply refer you to the published agenda. Perhaps I should refer only to those panels in which I am personally involved, but that seems a trifle egocentric.  I might limit the selection to those companies with whom I have a personal or business connection, but that potentially omits reference to a major player on a significant subject. Is my role simply to promote those who are good enough to sponsor what I do, or does that undermine the objectivity which is, I hope, what keeps the readership and the Twitter followers rising?

Looking through the programme for IQPC’s Information Governance and eDisclosure Summit, taking place in London this week, I can reconcile these various conflicts by reliance on the fact that the sponsors of the eDisclosure Information Project are representative of the broader range of providers, and that the subjects which they cover give a correspondingly representative picture of what matters in a UK-centric picture of electronic disclosure. Read the rest of this entry »

FTI Report – Advice from Counsel by Ari Kaplan: Trends that will change E-Discovery

February 11, 2013

As it did last year, FTI Technology has commissioned a study by Ari Kaplan called Advice from Counsel Trends that Will Change E-Discovery (and What to Do About Them Now). This is based on interviews with 30 inside counsel with the aim of identifying the most Important forthcoming trends and seeking their guidance as to what is required to face the changes.  It makes sense, does it not, if you sell software and services, to find out what your client-base expects – they are, after all, in the front line, and are simultaneously the canaries in the mine and the influencers, able both to predict forthcoming changes and to identify what is needed to meet them.

Ari Kaplan’s reports tends to be among the more influential published during a year – I found myself quoting from his 2012 survey all the way through last year. It would be odd if, having commissioned the survey, FTI do not take notice of its findings, and there is indeed a close connection between the feedback received from inside counsel and the recent developments in FTI’s software and service offerings. The messages, however, apply more widely than to a single provider. Read the rest of this entry »

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 »

Taking Predictive Discovery out of the black box

December 20, 2012

Part of my role is to help those responsible for eDiscovery / eDisclosure to identify the products and services which they might consider when deciding on the “tools and techniques” (as the UK Practice Direction 31B puts it) to be used to reduce document volumes to a manageable size and to review them. I don’t give system selection advice, for obvious reasons, but I do like to identify the product descriptions and ancillary materials – articles, papers etc – which help to throw light on the wider subject beyond the product itself. We are seeing some good materials coming out of providers at the moment, and I am working my round some of them; you would not thank me if I served them up all at once.

FTI Consulting, and its technology segment FTI Technology, have just announced their new Predictive Discovery solution. That is interesting enough, but what makes it more so is the material which FTI has published at the same time in order to make the subject more comprehensible to lawyers. Part of the value in the surrounding materials (which goes beyond their application to FTI’s own solution) is the way they address the “black box” problem – the glib expression from lawyers who don’t feel up to the intellectual effort of trying to work what what this kind of software does and how it can benefit their clients and themselves.

Let us look first at FTI’s new Predictive Discovery solution. It is a managed service, founded on new technology, which brings together lawyers, statisticians, technical experts and a set of processes which together work with the client to produce a result which is accurate, defensible and cost-effective. The consultative approach is important: the FTI consulting team works with the lawyers to review a subset of a document collection, making relevance and privilege decisions to develop a training set which is used to score documents for those attributes. The lawyers can then use the advanced analytics in FTI’s Ringtail software to verify the results. That same iterative approach continues as the review progresses, with a mixture of statistical sampling and by-eye verification from the lawyers. This iterative element is critical – humans have every opportunity to cross-check software conclusions and software functions can monitor manual decisions to identify, for example, inconsistent conclusions reference to other things known about documents of the same kind.

The service can be customised to suit the case; prioritisation based on relevance is one obvious function, but the technology and processes can be used as a means of validating decisions made by other processes, to cull down obviously irrelevant material and to check incoming productions, amongst other things.

A press release gives limited scope for explanation, and FTI has been working hard to foster understanding of predictive coding generally as well as writing about the scope of their service. This output includes an article in the FTI Journal by Senior Managing Director Joe Looby called Taking Predictive Coding out of the Black Box. It is an extremely helpful article, neither neither requiring existing knowledge nor patronising the knowledgeable reader, and it is illustrated with helpful diagrams.

That is backed by a webcast which I promoted at the time of its live broadcast and which is still available for download. In addition to Joe Looby, the speakers are the well-known Jason Baron, Director of Litigation at the Archives and Records Administration and Daniel Slottje who, in addition to being a professor, economist and statistician at the Southern Methodist University is a Senior Managing Director in FTI Consulting’s Economic Consulting Services practice. The article and webinar together serve as a comprehensive review both of the technology aspects of predictive discovery and of the recent developments in the courts.

Lastly on this subject, Joe Looby recently gave an interview to Metropolitan Corporate Counsel which explains in more detail what FTI’s offering consists of and expands on the point that there are multiple use cases which lawyers should think about when considering predictive coding.


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 »

Short eDiscovery updates to 27 October 2012

November 3, 2012

This is a summary of the posts about eDiscovery / eDisclosure on my Google Plus page between 21 and 28 October 2012. Those which relate to webinars etc which have now passed may lead to blind links. Where I know of a new address for a downloadable version I have given it.

______________________________ 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 »

Short eDiscovery Updates to 9 September 2012

September 17, 2012

This adopts my experimental new format which bundles my Google Plus posts for a period (not necessarily a fixed period) and makes their text available here, together with links to the G+ posts, to the source and to some of the names mentioned in the post.


In Re: Actos – Does New Federal Litigation Clarify Predictive Coding In eDiscovery?

Article by Matt Nelson of Symantec concludes that the answer to the question posed above is “no” because:

While Actos represents another step in the evolution of predictive coding, the protocol explained in the Order does not provide enough transparency to ensure the overall integrity of the predictive coding process.

Published: 2 September 2012

G+ Post | Link to Source | Clearwell eDiscovery Platform

______________________________ Read the rest of this entry »

Short eDiscovery updates to 28 August 2012

September 10, 2012

I am increasingly using Google Plus to supplement the main articles in this blog. This allows me to cover a wider range of topics, mainly links to articles by others, to webinar announcements and to other things which would otherwise go unmentioned. These are quick and dirty posts, distinct from the generally longer posts on the blog itself. Apart from the speed and convenience of G+ for this purpose, every new post on the blog triggers an email alert to many regular readers, who will be driven away if I send them an email with every short post.

These compilations are in a fuller form than previous ones, which have been merely hyperlinked references. This format repeats the G+ articles and gives links to my G+ post, to the source file which is linked from G+, and to some to the names mentioned in the text. The purpose is partly to bundle them conveniently for blog readers who do not pick up these short posts from G+, or from my Twitter and LinkedIn pointers, and partly because of the SEO (Search Engine Optimisation) benefits of the cross-links.


FTI webcast – Survey Results: What Does Counsel Really Think About Predictive Coding?

This webcast has now taken place but is available for download

Ari Kaplan, Principal, Ari Kaplan Advisors
Barry Murphy, Principal, Murphy Insights
Joe Looby, Senior Managing Director, FTI Technology

While the promise of predictive coding is alluring, many questions remain for corporations and law firms. Where does the software end and the importance of workflow begin? What can lawyers do to effectively defend its use? Are companies using it successfully? How much money can it save?

FTI Technology commissioned an interdisciplinary survey of law firm leaders and senior corporate counsel to identify key trends and perspectives on the emergence of predictive coding. The interviews covered everything from high-profile court rulings and cost savings estimates to adoption inhibitors.

Attend this webcast to learn the survey findings and hear first-hand perspectives and practical advice for implementing predictive coding software and processes, including:

Fortune 1000 and Am Law 200 predictive coding adoption trends
Best matters on which to use predictive coding
Top areas of concern, including predictive coding as a “black box”

Published: 21 August 2012

G+ Post | Link to Source | FTI Technology Read the rest of this entry »

London conference: Information Governance and eDiscovery for Financial Services on 10-12 September

August 26, 2012

IQPC is running an event called Information Governance and eDiscovery for Financial Services at Canary Wharf between 10 and 12 September 2012.  Recent events in the banking industry suggest that those who work in financial services, and those who advise them, might appreciate an update on the importance of managing and finding electronic information.

The conference begins with a workshop day comprising two sessions which are well worth your time. One, led by Drew Macaulay of First Advantage Litigation Consulting, is called Evidence handling in financial services investigations: tools, tips and traps. The second, led by Sanjay Bhandari of Ernst & Young’s Forensic Technology and eDisclosure Services, is called Conducting an internal investigation: a step-by-step guide for financial services industry Counsel.  Those two sessions alone justify attendance at this event.

There is more, however, in the ensuing two days of the main conference. First Advantage and Ernst & Young lead further sessions and there are contributions on the Navigation of multinational regulatory investigations from Craig Earnshaw and Nick Athanasi of FTI Technology and on Navigating cross-border eDiscovery challenges from Christian Zeunart of Swiss Re.

My own involvement is to facilitate a talk by Professor Dominic Regan with the title 2012: the most significant year in the history of eDiscovery? On past form,  the engaging Dominic Regan is the dream speaker for a moderator, requiring little prompting to explain eloquently why pending changes in the Civil Procedure Rules, amongst other things, force attention on electronic discovery through 2012 and into the pending reforms of 2013.


FTI Predictive Coding webinar today – what does counsel really think about predictive coding?

August 21, 2012

FTI Technology is putting on a series of webcasts about predictive coding. The first of them is TODAY at 13.00 ET with the title Survey Results: What Does Counsel Really Think About Predictive Coding?

The speakers are Ari Kaplan, Joe Looby of FTI Technology and Barry Murphy. The registration page is here.

The survey which gives the webcast its name was commissioned by FTI. Ari Kaplan was responsible for asking the questions and reporting on the answers. I put notice of it here partly because I missed the earlier announcements and partly because we do not often get the chance to hear what inside counsel have to say about predictive coding. As the principle potential beneficiaries of the costs-saving which it brings, their input is crucial to the take-up of this technology.


FTI and Skadden webinar: Best eDiscovery practices for international FCPA investigations

August 7, 2012

The website of Main Justice carries a recording and the slides of a webinar delivered on 11 July with the title Best e-Discovery Practices for International FCPA Investigations. The webinar was accompanied by a paper which recorded the results of a survey undertaken on behalf of FTI Technology with the self-descriptive title 114 S FCPA Experts Surveyed: Best Practices Revealed. The FCPA, for those new to this area, is the US Foreign Corrupt Practices Act which (as we will see) is the biggest single driver for large-scale e-Discovery exercises of the kind which concern the responders to the survey.

The moderator was Main Justice Editor-in-Chief Mary Jacoby and the panellists were Craig Earnshaw from FTI Technology and Gary DiBianco from the London office of Skadden, Arps.

If I were in confessional mode, I would admit that I do not always listen all the way through the webinars which I push your way, relying on the subject-matter and the quality of the speakers to act as a recommendation. I planned to do the same with this one, but then listened right to the end. Anyone with an interest in the practical aspects of collecting electronic documents for FCPA or analogous purposes should do so as well, particularly where there is a cross-border element.

Having thus unequivocally recommended it, it is perhaps otiose to summarise its contents – but I will do that anyway.  The key points which interested me were the following: Read the rest of this entry »

Recent posts on Google+ on eDiscovery and other legal subjects

August 2, 2012

Being away, and with only random access to the Internet, focuses one’s mind on the most efficient way of capturing interesting articles as Twitter (my main source) dishes them up. Whatever its other virtues, Twitter is no good as an archive, since tweets disappear from sight very quickly. I usually bung them into Evernote (an easy, two-click process) but have recently started putting more of them into Google Plus (which I am finding increasingly useful), with or without much in the way of commentary, and so sharing them instead of merely adding to my own information stock.

There were many articles of interest whilst I was away. Many had nothing to do with eDiscovery but relate either to the US coverage of the Olympics or to the peculiar range of English legal curiosities which came up whilst I was away – I have written about these in my article Manslaughter (not), brand protection, Twitter censorship and crass Olympic coverage.

The Google Plus links work best, in indexing terms, if I cross-link to them from elsewhere. I do this in batches from Twitter with every few Google Plus posts and, as regular readers know, also list them here and on my website to make a running archive of them for future searchers to find. Although this involves a two-hop process for users (to my post and thence to its subject) the alternative, in many cases, is that the source article will simply disappear from view.

I have started trying to capture the dates of webinars and other events organised by those who sponsor the eDisclosure Information Project as well as articles. If I miss an event, it is either because I did not find out about it until too late or because I was away.

Recent posts include those listed below. There are others in the pile, but it is not necessarily helpful to list too many at once, so I will stop here for now.


Symantec Twitter Chat: How to Speak Legalese | 2 August at 10.00am PT

FTI and eDiscovery Journal – The Last Mile: Using Analytics for Trial and Depositions – Webinar on 7 August

Symantec Webinar: The Nexus Between Proactive Information Governance and Reactive eDiscovery | 7 August at 10.00am PDT

Recommind webinar – Cost Reduction Strategies Legal Departments Consider: Addressing the Real Problem | 12 September at 2pm ET

CY4OR Presentation – The Importance of Electronic Evidence – Manchester – 29 September

eDiscovery / eDisclosure

Devin Krugly of AccessData – some Olympic Twitter risks and some ideas for minimising them

Singapore International Conference on Electronic Litigation

Take it e-sy: e-Disclosure interviews in the UK Lawyer Magazine

Charles Skamser’s account of the 2012 Carmel Valley eDiscovery Retreat

Can the SFO survive the Tchenguiz warrant humiliation?

Are Seed Sets the New Keyword Part II You Can Have My Seed Set by Howard Sklar of Recommind

Company Results

Epiq Systems Q2 2012 Results with Record Operating Revenue of $89.8M

Guidance Software Q2 2012 – Record Non-GAAP Revenue $31.5 million, up $7.6 million, or 32 percent year-over-year


Harwood Acquittal

David Allen Green in the New Statesman on the acquittal of PC Harwood

Crimsolicitor brings a different view to the PC Harwood acquittal

Metropolitan Police tried to hide Harwood’s disciplinary record

LOCOG Olympic Brand Enforcement

Take THAT, LOCOG – Anya Palmer has collected together some of the madder LOCOG stories

Unauthorised bunting in the corporate area

Lodnon 2102 Olmplycs

Twitter joke Trial

Carl Gardner: Why did the CPS and the DPP begin and pursue the Twitter Joke Trial?

Louise Mensch MP in the Guardian: The Twitter joke trial and the twits who pursued Paul Chambers

CharonQC Podcast with John Cooper QC on the acquittal of Paul Chambers

What? The CPS were willing to call it a day on Twitter Joke Trial but the DPP insisted on going ahead

Olympic Opening Ceremony

Forbes critique of NBC coverage of the Olympics Opening Ceremony

The New Yorker – Danny Boyle Wins the Gold

Our Island Story – perhaps the best account of the Olympic Opening Ceremony

LA Times article on Olympics opening ceremony – London puts on a smashing show

Twitter suspension of journalist’s account

Twitter suspends the account of Guy Adams, a journalist critical of NBC’s Olympic coverage

Twitter explains its approach to private information following reinstatement of journalist’s account

A motive for Twitter’s non-apology for suspending Independent journalist’s account


More plausible than you might think – The Telegraph on Boris’s threat to Cameron


Random photographs from a drive from Las Vegas to Carmel


Notes from Hong Kong: Dinner with Richard Kershaw of FTI Technology

June 25, 2012

This is a continuation of a series of roughly chronological mini-posts following my recent visit to Hong Kong.

I have reported elsewhere that I heard a rumour of a senior appointment at FTI’s Hong Kong office, and deduced that they must have recruited Richard Kershaw.  My assumption proved correct. Richard kindly invited Browning Marean and me out to dinner, giving us en route the opportunity to see FTI’s rather fine offices in The Center.

The Center Hong Kong

The Center, Hong Kong, where FTI Asia-Pacific has its offices. Yes, I know the photograph is sideways, but the resemblance to a rocket seems apt given FTI’s growth in the region.

There was a gleaming Pashley bicycle in reception which could have belonged to a staff member or could have been symbolic – Pashley has successfully married modern technology and old-fashioned values and style, and might well have been chosen deliberately to reflect those qualities in what FTI says on its website is “the largest specialist advisory firm in Asia-Pacific”. Read the rest of this entry »

Something for everyone at IQPC’s Information Governance and eDisclosure Summit

May 18, 2012

If you want a rounded account of IQPC’s successful Information Governance and eDisclosure Summit in London this week, this is not the place to find it. I was involved in five events over the three days and spent most of the rest of the time talking to providers, judges, lawyers and in-house eDisclosure people from law firms and their clients, attending very few sessions as a result.

The nearest you will get to a narrative account can be found by looking for the #infoGovSummit hashtag on Twitter and particularly the tweets of Recommind @Recommind,  Barclays’ Matt Ward @_Matthew_Ward_,  and the ever-reliable Andrew Haslam @AndrewHaslam (winner of the event’s tweeting prize).

FTI Technology Panel

It began for me with a workshop led by Craig Earnshaw of FTI Technology at 8:30am on Monday morning. Our subject was When Volumes get Large: How to Keep Control of Your eDisclosure, which was kicked off with talks from Glen Greenland and Ian Smith of FTI and then taken up by a panel comprising Matthew Davis of Hogan Lovells, Jean-Bernard Schmid of the Geneva Public Prosecutor’s Office and me. No eDiscovery exercise, whether for civil litigation, or for an investigation for regulatory, criminal or internal purposes, ever ends up smaller than anticipated.  What resources, of people and technology, do you bring to bear in a way which remains proportionate whilst scaling up to meet new developments?  The subject was deliberately broad, and swept up a range of challenges from pure volume to time constraints to privacy and all the other wrinkles which are recurring features of exercises which are increasingly global in nature.

The most memorable moment had nothing to do with the primary subject – or perhaps it did. Craig Earnshaw asked for the most extreme example of geographical remoteness encountered by the panel. No-one sought to compete with Matt Davis’s reference to Hogan Lovells’ office in Outer Mongolia, neatly emphasising that there are no geographical limits any more.

Dinner with Nuix

A dinner hosted by Nuix on Monday night gave me another example of projects which turn out bigger than anticipated, as well as an object-lesson in the value of actually reading one’s e-mails.   Read the rest of this entry »

Conference topics indicate the important eDiscovery and eDisclosure themes

May 11, 2012

That part of my life which involves speaking has four elements – preparation, travel, delivery and reporting. The month of May always has a full diary of events, and this year has more than usual. Of the four elements, the only one which is optional is the reporting, and it is that which I must abbreviate here. I can make a virtue out of that by summarising the themes which run through my current batch of events, reckoning that the subjects which recur at events are those which are seen as important.

I am writing this from the top floor of the Wynne / Encore hotel in Las Vegas where I have been speaking at AccessData’s User Conference. Below me lies the vast complex of casinos, conference rooms, shops, swimming pools and catering facilities which are the standard mix in this city.  To my left, and  temptingly close, lies McCarran airport with toy aeroplanes taking off and landing. But for the iniquitous cost of today’s flights, I would be there now, getting ready to go home less than 24 hours after arriving here (I could not come earlier because of ILTA Insight in London). As it is, I am stuck here until tomorrow – though as offices go, this one is hard to beat. Away to my right lies the Red Rock Hotel; I will be there in a few days time for Guidance Software’s CEIC. It would be a great deal cheaper, and much more productive in writing terms, to stay here for the intervening few days, but IQPC’s big Information Governance and eDisclosure Summit takes place in London next week and I must be back for that. When CEIC is over, I must get back for a CPD  talk which I am giving in London.

What themes recur through these events? Read the rest of this entry »

Australia, New Zealand and Hong Kong claiming eDiscovery attention

May 2, 2012

Australia, New Zealand and Hong Kong only look close together when viewed from a long way away. They all have a common law eDiscovery tradition, but it is coincidence of timing rather than any specific commonality which groups them together in this post. A group of articles has bunched together in the electronic equivalent of my in-tray (Evernote, since you ask) and it is convenient to pick them off together.

So far as Australia is concerned, I have written recently about Practice Note SC EQ 11 which aims to limit disclosure of documents in the Equity Division of the New South Wales Supreme Court. That no doubt will be discussed at Chilli IQ’s 6th Information Management and eDiscovery Summit, due to take place in Sydney on 19 and 20 June. Confirmed speakers include Michelle Mahoney, Director of Legal Logistics at King & Wood Mallesons, and Browning Marean of DLA Piper US.

The subject headings cover the full range of current talking-points. The unambiguously named Predictive coding: what is it and how could it change the practice of law in Australia clearly aims to give this subject its due.  Michelle Mahoney knows more than most on on How to best manage outsourcing eDiscovery and hosting. Browning Marean is always lucid on legal holds. Add Nuix on Integrating legal technology into your organisation and you conclude that Chilli IQ are not stinting on quality speakers. Read the rest of this entry »

Recent eDiscovery Posts on Google Plus

March 16, 2012

Arguments continue as to the value of Google Plus as a FaceBook rival. I don’t much care about that, only about its ability to attract wider audiences. It is working for me (well, something is) and I continue to put short posts on my Google Plus page, cross-linked both from occasional summary posts here and from my web site.

Quite apart from the SEO (Search Engine Optimisation) value, this allows me to cover a wide range of subjects and pick up more of the many useful articles which come by without triggering an email to my Blog subscribers with every addition.

Recent additions on Google Plus include the following:

Applied Discovery and Relativity announce strategic partnership

FTI Consulting, Guidance Software and Nuix in the Above the Law Research Corner

“Shit” e-mail drops midwife in the shit

IAAC Guide to Forensic Readiness for Organisations, Security Advisers and Lawyers

InfoRiskAwareness – Mark Surguy of Eversheds on Meaningless Information

Significant changes to Singapore eDiscovery Practice Direction

Taylor Wessing adds Singapore firm RHT to its network

Catalyst summarises Judge Peck’s Computer-Assisted Review primer

Recommind’s Howard Sklar on diminishing marginal returns in document review


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 »

Forbes article: Technology assisted eDiscovery and the role of humans

January 11, 2012

I bring a fairly jaundiced eye to some of the marketing by those who sell technology solutions to lawyers. This is not so much to do with the quality of the marketing materials themselves but more to do with their approach to the psychology of those to whom the marketing is addressed. To some extent, a mismatch is unavoidable: the technology pitch is that it saves lawyer time, and lawyers live by selling time; much of eDiscovery validation depends on statistics and probability, and lawyers are largely arts graduates; there is good reason for fear, uncertainty and doubt in the management of discovery and it is unsurprising that providers trade on this as part of their pitch, often at the expense of more positive messages.

Deeper fears are touched by the implication that technology can do certain tasks better than humans can do them. It comes across as a threat to jobs at a time when many lawyers are out of work already; it appears to mock the years of expensive learning and the large qualification debts; it seems to threaten the central role which lawyers have traditionally had in the litigation process as functions are increasingly delegated to what is seen as a black box, and are challenged by new business models. There is something in all of this, and the New York Times article of March last year Armies of expensive lawyers, replaced by cheaper software, stoked fears which certainly had some substance. Read the rest of this entry »

FTI’s take on 2012 – fewer eDiscovery suppliers per company and more people with “Discovery” in their job title

January 8, 2012

I talked on Friday to FTI Technology’s Mike Kinnaman, to catch up with FTI’s view of the eDiscovery market in the coming year. FTI takes what you might call an evidence-based approach to prediction each year, asking Ari Kaplan to collect, aggregate and comment on the views and experiences of in-house counsel at the higher end of the eDiscovery market. That approach, Mike Kinnaman said, tells FTI where the market is going and “takes a bit of the fuzz off the crystal ball”.

Most of what emerged in 2011 is consistent with earlier trends and unsurprising: early case assessment as a process continues to be important as a way to get better control of cases and their costs; there is a sharp focus on the cost of the legal review; and the use of managed review services has remained consistent after a steady rise, appreciated not just for keeping costs down but for making them more predictable. Read the rest of this entry »

ILTA Insight in London 8 to 9 May 2012

January 4, 2012

ILTA, the International Legal Technology Association, works throughout the year to advance and share knowledge of legal technology developments, priding itself rightly on its peer to peer relationships between members. It has a major conference in the US each year – my main report on the 2011 event at Nashville was called ILTA 2011 – the end of the beginning? We’re just getting going and took its cue and its headline from a quotation given by Andrew Sieja of kCura in a pre-conference interview.

I also devoted a post The Needle on the Broken Record – why UK Law Firms should go to US Legal Conferences to the broader subject of the reasons why law firms should be ready to face threats from other players.

As I say in those articles, ILTA and its conferences have a great value for non-US lawyers – there is more commonality than difference in the business of using technology to work more efficiently, and ILTA’s remit is much wider than eDiscovery / eDisclosure. The point is not just to do as US lawyers do, but to anticipate, and fend off what I described the the Broken Record article in these terms:

The businesses competing for these distributed functions [the former provinces of law firms] will include Ernst & Young and its peers, and the likes of FTI ConsultingHuron Legal and Integreon who will be happy to leave the pure law to the lawyers whilst gradually supplanting them for everything else…..the legal consulting firms are out there mingling with the people who are driving new ways of delivering business, with those law firms who are looking to the future, and with the technology providers who will be their allies in producing the tools for new ways of working. Shouldn’t you be there too? 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 »

I see you have done no blog updates….

October 21, 2011

As comments go “I checked this morning and saw that you have done no blog updates” ranks very much higher than “Oh, do you keep a blog?”. The observation came, however, from someone who was also attending the Nuix Exchange in Sydney and sharing its very packed programme, and if even he could not see why I had no time to write blog posts, then perhaps I ought to add a little to the explanation given in my last post.

I arrived in Sydney at dawn on Saturday but without having reported on the last three conferences which I attended – the Masters Conference in Washington, E-Discovery Ireland 2011 in Dublin and the IQPC Forum E-Discovery in Berlin. Not every conference, still less every conference session, is worth writing about, and leaving some distance before writing about them helps one to focus on the points of lasting significance. It is equally the case, however, that I owe new readers some elements of the back story and of the continuing themes, even at risk of repetition for those who have been here for a long time.

The Masters Conference was interesting because separate sessions were devoted to each of the current big e-discovery themes. Dublin was important because it was Ireland’s first e-discovery conference. The Berlin event illustrated (yet again) the gulf which exists between common law (and particularly US) discovery and EU (and especially German) attitudes to handling data.

The Nuix Exchange was different from all these, as an assembly of people deliberately chosen to try and move the discussion beyond the present and into a future which is coming whether we like it or not. I am not going to steal my own thunder, as it were, by giving now a potted version of the fuller reports to come, but I can give a taste of what was covered here. 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 »

Time to take the next steps: a Hong Kong eDiscovery conference

June 26, 2011

Leaving aside Australian conferences, this was my fourth AsiaPac event. Two years ago, I co-chaired a conference for LexisNexis in Singapore. Shortly after that, Jeffrey Teh and others from LexisNexis set up InnoXcell to bring business events to the region. I did conferences with them last year in both Hong Kong and Singapore and was pleased to be asked back to Hong Kong for this week’s conference.

Here is a Twitter exchange between me and whoever tweets on behalf of @Exterro and @eDiscoveryGroup after the first day of the conference:

Me: Day 1 of eDiscovery conference in HK ends – a good day. Two sessions down and one on costs to go tomorrow

Exterro: How has that conference being going? Any ground-breaking stuff happening?

Me: That is not what to expect here – slow attrition is the target rather than breaking new ground

Exterro: Well then how is the slow attrition going? [He doesn’t give up, this one]

Me: Steadily and in the right direction

eDiscoveryGroup: “Steadily and in the right direction?” What direction are they headed?

Me: If I’d known I would provoke an inquisition from all corners I’d have kept my trap shut. My report will follow.

So here is that report. “Steadily and in the right direction”, as used in my tweet, has its plain English meaning – nothing dramatic has happened in Hong Kong in e-Discovery terms since I was last here, but there is interest from a wider range of companies and lawyers provoked by much the same pressures as arise elsewhere. As with everywhere else, we need to move on from “What is native format?” to “How can I best reach my client’s objective?”. Read the rest of this entry »

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 »

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 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 »

Filling the day and nearly getting filled with lead

April 17, 2011

One of the influential figures in US ediscovery gets very cross at references to the “ediscovery market”, as if the commercial connotations somehow sully the purity of the context of rules and judges and justice which the ediscovery / e-disclosure industry supports. I am pretty keen myself on the “pure” side of it, and more widely than my ediscovery remit, which is why civil liberties and the relationship between rulers and ruled turn up in these pages from time to time.

The “market” side of it, however, is both integral to the delivery of justice and interesting in its own right, both in the delivery of legal services and in the technology which is my own particular concern. What I do touches on several different aspects – business processes, technology, the law itself, and marketing. Periodically, I am asked: “What exactly do you do?”. One of my children, when asked this question recently, said “He writes a blog”, presumably leaving the questioner little the wiser. What I do is, of course, of interest to others only to the extent that it throws light on the market. If I describe my day in London on Thursday, as I am about to do, it is because it touched a lot of industry corners, and not because my own diary is likely to enthrall anyone for its own sake. It nearly included a rather closer interaction between rulers and ruled than I generally look for. Read the rest of this entry »

Davis v Grant Park – EDiscovery Sanctions just like the Advantage Rule in Rugby

February 23, 2011

I am keen on parallels and analogies which help illustrate serious subjects by drawing on historical, fictional,  cultural or any other references which may throw light on (or at least help us to remember) things we ought to know. The brief summary of US Magistrate Judge Facciola’s opinion in Davis v Grant Park on the Gibbons E-Discovery Law Alert made me think immediately of the rules of Rugby Union. There are parallels between the penalties in court and on the rugby pitch, and a side-wind brings me an Australian connection which fits my theme.

I have talked about rugby before, on the occasion of an enjoyable day out as a guest of FTI at the Varsity Match in December. That article prompted Kate Holmes of FTI to ask me on Twitter to explain the rules of rugby, an invitation I declined on the grounds that 140 characters would barely get me started. I am not really qualified anyway to expound upon the rules, but one that I do know is the Advantage Rule. I will come back to that, and its relevance to Davis v Grant Park in a moment.

The full title to the Gibbons summary is Davis v Grant Park holds that sanctions motions for breach of duty to preserve electronic communications are premature until the close of discovery. Judge Facciola refused a motion for sanctions for the alleged destruction of electronic communications finding it “premature to consider the question of sanctions until discovery ends and the court can assess accurately what prejudice, if any, the loss of the electronically stored information has caused”. Judge Facciola cited his own decision in D’Onofrio v SFX Sports Group, Inc., where he said:

“[i]t is only after establishing the prejudice the plaintiff suffered that any resulting sanction will fairly address that prejudice, consistent with this Circuit’s insistence that any sanctions imposed be a function of the prejudice done to a party by its offending opponent.”

I have written before about the non-US perception of ediscovery sanctions, most recently in an article called The ups and downs of US ediscovery sanctions. I said there that “To my eye, if one wanted to design a system which was absolutely certain to encourage satellite litigation, tactical play and (as a defensive reaction) excessive discovery as a back-covering exercise, you would come up with something like the present sanctions regime”, whilst cross-referring to an earlier article which made it clear (I hope) that I was alert both to the rationale behind sanctions in appropriate cases and to the fact that (as Judge Facciola himself put it in a conference speech) judges do not wake up every morning asking “Who shall I sanction today”. For all that balance and fairness, however, the outsider’s perception is that the fear of sanctions, and particularly sanctions which are disproportionate to both the offence and the prejudice, drive up the scope, and therefore the cost, of electronic discovery. D’Onofrio and Davis v Grant Park are welcome correctives to this. Read the rest of this entry »

Cross-Border and Multi-National eDiscovery at LegalTech from FTI and Epiq

January 27, 2011

I have written already about those sessions at LegalTech 2011 in New York which have a UK element in them (see Strong UK presence at LegalTech 2011). As I said in that article, it is impossible to list, let alone expand on, every session which is likely to be interesting or which involves someone I know.

As always, I marked down the sessions I wanted to attend but have gradually had to concede them as the time needed for meetings, and for the two sessions which I am moderating (Monday at 14.00 and Wednesday at 12.15 since you ask), began to exceed the total time available. I have managed to cling on to the Tuesday morning sessions.

Last year at LegalTech I was involved in two panels on multinational and cross-border disputes, a subject of inexhaustible importance to US lawyers. With a bit of rushing about, I should be able to attend at least parts of the three overlapping sessions which cover cross-border matters this year on LegalTech Day 2.

I have already mentioned the two sessions run by Epiq Systems, Navigating the Challenges of Cross-Border Regulatory Investigations at 9.00am on Tuesday, and Managing a Global Review while Minimising Risk at 10:45am. Between them, they include three UK people with whom I speak regularly at conferences, Vince Neicho of Allen & Overy, Professor Dominic Regan and Senior Master Steven Whitaker as well as other people worth hearing.

Overlapping them, however, is a session run by FTI called Multinational Discovery: Privacy and Process. Joe Looby, Senior Managing Director at FTI, is the US lead on FTI Investigate , which pulls together the human and technology elements needed for rapid investigations across national boundaries. The thorny problem there, apart from the logistical one, is often the conflict between the need to extract as much information as quickly as possible and the restrictions of local data privacy laws. I interviewed Craig Earnshaw, FTI Managing Director – Technology in London, about this recently and am looking forward to this session to round out a paper which want to write on the broad issues as well as on FTI’s specific service.

The FTI Investigate web page has some case studies which I commend to anyone who is interested in this area. I have mentioned before the  RAND Europe Two-Part Report: E-Discovery and Legal Frameworks Governing Privacy and Data Protection in European Countries which came out in October and which gives a good overview of the issues arising in the EU. That can be found here on FTI’s website.

The other main draw for this session is Amor Esteban of Shook Hardy Bacon LLP. I did a panel with him at the Georgetown Advanced Ediscovery Institute (see  International discovery, sanctions, ethics and US-UK comparisons at Georgetown and will be glad to hear him again.


To the Varsity Match with FTI to watch Oxford win (and other things)

December 10, 2010

I went yesterday via Terminal 1 at Heathrow to the Varsity Match as a guest of FTI, where Oxford beat Cambridge 21-10. The last time I watched rugby at Twickenham was 4 November 1967, when the Queen nearly ran me over.

That is a paragraph which raises more questions than it answers for many readers. What is a “Varsity”? What is “rugby”? Who on earth remembers precisely where he was 43 years ago? Oh, it’s that bloke who is always at Heathrow – but what is he doing there on a journey from Oxford to south-west London? How does a homicidal head of state come into it? At least the name FTI means something, so let’s start there.

FTI Consulting is a large international advisory company, whose business segments include FTI Technology. FTI Technology owns well-known discovery brands, such as the review tool Ringtail Legal and the processing tool Attenex Patterns, and has developed other products and consultancy services around them. It therefore competes in the same marketplace as both the software-led and the consultancy-led e-disclosure / e-discovery vendors in addition to its wider consultative role, something which is often overlooked by those who are short-listing e-discovery providers.

FTI Technology is amongst the sponsors of the e-Disclosure Information Project, which gives me the opportunity to hear and then write about a wide-range of discovery-related topics. Coming up, for example, is a piece about a paper which FTI has commissioned from RAND on eDiscovery in European Countries, which ties in with FTI Investigate, FTI’s recently-launched global investigations initiative.  I have been speaking on panels on US-EU data collections in both the US and Europe recently, and the subject is one which matters. 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.


Changes in the UK eDisclosure market: Huron acquires Trilantic just after Grant Thornton acquires Legal Inc

November 4, 2010

The consolidation of the UK and international e-discovery market took a further step today when Huron Consulting Group announced the acquisition of Trilantic. This follows the recent announcement that Grant Thornton had added Legal Inc’s people and expertise to its range of investigative, forensic and litigation services.

For the moment, I have little to add to the press release, but I will be talking in due course to both Lisa Burton, co-founder of Legal Inc, and Nigel Murray of Trilantic, to find out more about what these acquisitions actually mean in terms of the range and depth of services offered to clients, particularly UK clients.

There is a temptation to assume that fees march in step with the size of the provider, that is, that it must necessarily cost more to involve a large organisation to help with e-Disclosure. This perception is derived from two things, neither actually relevant: firstly, this is almost invariably what happens when law firms get bigger, so lawyers expect a corresponding hike in fees when a smaller provider is acquired by a larger one; secondly, larger providers are able to handle larger jobs which necessarily involve fees proportionate to the work which is to be done. That does not mean, however, that an international software company or one of the big consulting firms such as Ernst & Young, KPMG, FTI or Grant Thornton is not willing and able to compete for smaller jobs.

You will only find out by making contact with a broad spread of providers and finding out what the cost implications are of jobs like yours. Quite apart from the point about untested assumptions, the engagement of a big ally allows mid-sized law firms to take on work which would otherwise be beyond them. You happily engage a big-name barrister (whose fees will indeed reflect his or her status) in order to play in the big game; why not find out what it would cost to team up with a top-flight technology supplier? You might be pleasantly surprised, but if you don’t ask, you will never know.


Another London doorway to Equivio technology

November 2, 2010

Legastat is the latest London-based e-disclosure services provider to offer Equivio’s technology for speeding up the identification of redundant data and enabling early case assessment. It is not the only such provider, and the same technology is available as integrated components of some software solutions.

There are not many providers of electronic document services whose logo includes the words “Established 1953″. It was obviously a good year for those whose involvement in electronic disclosure was necessarily preceded by a long period doing something else. It was the year in which I was born and it is the year in which Legastat was founded, and both of us had to occupy ourselves elsewhere until e-disclosure came along. I was a solicitor and Legastat was a provider of printing and copying services. When I was an articled clerk, I used to go to its premises in Carey Street, at the back of the Royal Courts of Justice, for urgent copies, a service which it still provides from the same premises.

More recently, it has added e-disclosure services to its more traditional offerings, now under the direction of Casian Sala. It crosses my radar now because it has augmented the services offered to its clients by taking Equivio’s technology for identifying near-duplicates and e-mail threads. It joins many of its rivals in the UK litigation services market, Trilantic, Hobs Legal Docs, and Millnet among them, on the list of those who provide Equivio’s technology (I will come on in a moment to those who provide them as part of and in addition to their own software solutions). Read the rest of this entry »

Having the Acuity to determine Relevance with Predictive Coding

October 15, 2010

Many commentators have lighted on the paper Crash or Soar – Will the legal community accept “predictive coding?” by Anne Kershaw and Joe Howie, in which they explored whether lawyers will be willing to abide by the results of review accelerators, which they group together with the label “predictive coding”.  The article is based on the results of a survey of eleven legal software companies whose applications or services include review accelerators of some kind. Three of those who took part in the survey are companies which I know well, and happy chance enables me to make a plausible title for this article from FTI Technology’s Acuity, Equivio>Relevance and Recommind’s Predictive Coding.

“Acuity” is sharpness or acuteness. “Relevance” connotes bearing upon, pertinent to, the matter in hand. “Predictive” implies foresight and the ability to anticipate. These are good names, therefore, for products or services whose function is to get you to what matters quickly. The Kershaw/Howie article gets its name from the fact that many lawyers are nervous of reliance on any form of automated review, preferring, or at least claiming, to read every document.

Those who advocate human review must address three points: if predictive coding (I will stick with the Kershaw/Howie label for convenience) can save significant costs without significantly reducing accuracy then the burden falls on its opponents to point to its flaws; consistent accuracy by humans – Monday to Friday, morning till night, across multiple reviewers – is impossible to achieve, at least within reasonable time-frames; and even if you could expect such accuracy, you have no way of verifying it without repeating the exercise with a different set of reviewers, whereas (as Kershaw and Howie observe) “predictive coding is based on human-assisted computer analysis, sets of documents can be examined multiple times using different parameters or sample sets”. Read the rest of this entry »

Technology providers strike up long-term links with clients

October 14, 2010

Since I do not purport to be a journalist, I have the luxury of letting things float around in my head until an angle evolves. Odd strands – things I read or see or which come up in discussions – sit around like ingredients for an as yet unplanned recipe until a context appears.

The context in this case is something which I mentioned in my long omnibus article of a few days ago called Turning e-discovery news and views into a community of interest.  I said I would come back to an interview with Professor Richard Susskind in which he discussed the transition of legal technology providers from being mere suppliers to being trusted advisers to law firms or companies.

The transition has parallels in other areas.  The supply of computer hardware began as a bespoke personalised thing – my first PC was delivered by a man who unpacked it, set it up and showed me how to use it. As competition tightened the margins, suppliers could not make money like that, so they switched to volume box-shifting. Now that everyone can shift boxes cheaply, they need other ways both of attracting attention and adding value. Litigation support services have followed the same path from individual attention to ever-thinner margins on coding and hosting through to co-operative work with clients to make best use, for example, of new culling tools and review accelerators. The next phase moves beyond such transactional co-operation and towards longer-term working. 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 »

SharePoint 2010 is the next dumping ground for lawyers to understand

June 28, 2010

Larry Briggi of FTI Technology describes Microsoft’s SharePoint 2010 as “the next dumping ground”. SharePoint is already here and now and having stuff dumped in it daily. FTI’s SharePoint Harvester is one of the new products aimed at meeting the problems which SharePoint raises. Technical comparisons fall outside my remit, but Larry’s blunt description of the problem caught my eye, so I asked him to explain what the problems are in terms which a lawyer would understand.

Parallel  announcements from different vendors induce a kind of writerly paralysis in me. The press releases roll in, many accompanied by invitations to speak to someone authoritative about them. The fact that several companies have addressed the same problem indicates that the subject is an important one, but the vocabulary for describing it is finite, and five articles in succession covering the individual ways in which the problem has been tackled is not an audience-winner. I am not much interested in just passing on press releases, nor am I technically qualified to compare the merits of each (which would, in any event, require exhaustive hands-on testing in a live environment), so rival claims about relative capabilities leave me cold. Any list is bound to omit someone with a claim to a mention, so there is a temptation to avoid the subject altogether for fear of offending someone. Last but not least, May and June are always crazy times when product releases and industry announcements flood out over a period when I am either at a conference, packing to go to a conference, or sitting in an airport lounge in a cold, grey dawn when my body thinks it is tea time.

Really, though, I am interested in market trends rather than products – the problems which are being faced by companies and lawyers and what sort of solutions the providers are coming up with to help them deal with them, with a particular focus on the UK. My role is not so much reportage (that is Charles Christian’s job) or analysis (I leave that to the The 451 Group), but helping lawyers to understand what implications arise when they have to collect their clients’ documents and data for disclosure. Given that most UK lawyers are still struggling with the idea that Word and Excel files are “documents” at all, and since I write for the long-term not for tomorrow’s deadline, I am let off the production of “news” and do not feel too embarrassed if time elapses between an announcement and my coverage of it.  My piece of a few days ago about a $25 million ediscovery sale is a rare example of a story which (thanks to Twitter) I had  before almost everyone else and which warranted some instant journalism. 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 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 »

Some object-lessons from history, art and a non-discovery conference

June 25, 2010

You nearly got a grumpy old man story from me yesterday morning. You were spared only because I did not have time to write it before setting off for London. If I had known how the day would evolve, I would certainly have written it – although I suppose if I had known how the day would evolve, I would not have gone to London in the morning and there would not have been anything to be grumpy about.

I was asked at short notice to cover for someone else doing an e-disclosure session at an industry-specific conference. I am pretty conferenced-out by this stage in the year, so I was not exactly suffused with pleasure at the prospect. I am generally fairly picky about the ones I do, sticking either to the very big ones which are bound to be good, or taking an active role in shaping smaller ones in advance. This one was set in stone by the time I heard about it, but I broke all my rules about reconnaissance to help out. I roped in Vince Neicho of Allen & Overy who kindly agreed to do it with me, and we worked together to produce a slide set and a running order. All conferences have a tedious lead-in period where emails fly to and fro; my crossness was with myself for conceding a battle over the time of our session – I wanted it as late as possible in the day, but the organisers simply wouldn’t have it and I had given up fighting over it. The slot they insisted on, just after lunch, screwed up my whole day, not just part of it, and I don’t have half days to spare at the moment, any more than Vince does.  I had also failed to spot that the venue was not in fact in London but somewhere out in the Essex marshes. Read the rest of this entry »

Far and wide eDiscovery at the Chilli IQ conference in Sydney

June 13, 2010

Sometimes an unconscious theme develops during conferences. Appropriately, perhaps, given the “IQ” element in the organiser’s name, the point which recurred in Sydney was the use of human intelligence in parallel with the processing power and clever technology to get as early as possible to the things which matter. That phrase “as early as possible” came up a lot, not least because (as I noted when I commented on it – see Terms of Reference for Australian Discovery review),  the Australian Attorney General’s Terms of Reference for the pending Discovery Review uses those words three times in their few lines.

Beth Patterson of Allens Arthur Robinson observed, for example, that one might be able to count whole directories in or out by having someone with the appropriate skills and a bit of brain just look in them; if they are patently irrelevant, why include them in the future stages? Michelle Mahoney of Mallesons said that dependence on raw processing power alone meant taking the thinking out of discovery; computers are very good at many things, but they cannot think. Eddie Sheehy of Nuix, unsurprisingly as strong an advocate of intelligent computing power as you will find, recommended giving a couple of the team’s best brains a day or two towards the end of the exercise to try and pick holes in the result by going in any direction they thought fit, trying to find documents or categories which had been wrongly included or excluded. For the third conference running, Equivio (who were not involved at any of them) was praised for the way its products used the best of technology and intelligent human input.  And I used my stock phrase “the best technology lies between your ears”.

Chris Dale and Master WihitakerI quite like opening the batting at these conferences. The audience is awake, no-one can have stolen your thunder by covering your chosen ground, and a keynote speaker has licence to roam more widely than one with a defined topic.  I merged my session with that of Senior Master Whitaker – I gave a short introductory speech, and used the rest of the double session for an interview-style  discussion with Steven Whitaker about UK developments.  My topics in opening included the international community of interest in ediscovery; the relative importance of rules and processes on the one hand, and discretion, proportionality and the clients’ actual objectives on the other; and the changing relationship between clients, their lawyers and the technology suppliers, with the possibility that the lawyers will get marginalised in that relationship.  Steven Whitaker took us through the key points of the Jackson Report, the range of disclosure options in the draft Rule 31.5A, and the proposed Practice Direction and Questionnaire. We took the cases between us, Steven Whitaker covering the ones which turned on the law, and I taking those in which stupidity, ignorance and incompetence were the main factors (there is something about being in Australia which encourages plain speaking). Read the rest of this entry »

FTI Consulting partnership makes Late Shift possible for National Portrait Gallery

May 14, 2010

It is not just e-Disclosure which needs to find wider audiences. Institutions like the National Portrait Gallery also have to make their displays more accessible. The word “accessible” acquired politically correct connotations in the New Labour years, with public funds being handed out or withheld by reference to minority quotas rather than to actual need or interest. In more useful terms, accessibility often comes down to places being open outside normal working hours.

That is part of the rationale for the National Portrait Gallery’s Late Shift initiative which allows it to stay open on Thursdays and Fridays until 9:00 pm. The NPG has set up a partnership arrangement with FTI Consulting to facilitate this, and there was a party at the gallery last night at which FTI were the hosts. Read the rest of this entry »

E-Disclosure law, practice and technology in one educational package

May 13, 2010

The first of the E-disclosure seminars organised jointly by Professor Dominic Regan and me took place yesterday at Ely Place Chambers. Dominic and I were joined by Senior Master Whitaker and by speakers from three technology providers, 7Safe, Legal Inc and FTI Technology to bring together the law, the practice and the technology in one afternoon session.

The expressed rationale for the e-Disclosure Information Project is to bring together all those with an interest in making electronic disclosure efficient and cost-effective. That crossover is important –  knowledge of Part 31 CPR and its practice direction is a good start, and the increasing number of cases involving e-disclosure failures send a strong warning to lawyers. Lord Justice Jackson drew attention to the need for more active case management by judges, and the proposed new practice direction and ESI Questionnaire raise the temperature on that front. Meanwhile, the technology reduces in cost as it increases in capability and, if properly used, maps well to the steps which parties and the court must take together, first to decide on the scope of disclosure and then to achieve it. The case management itself must be proportionate to what is involved. Read the rest of this entry »


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