Every angle covered at CEIC 2013 in Orlando

I am at CEIC 2013, the big annual conference covering forensics, cybersecurity and eDiscovery run each year by Guidance Software. The event has outgrown its previous venue here in Orlando, and is at the vast Rosen Shingle Creek.

The view from my room suggests leisure and relaxation:

At the other end of the building, however, final preparations are in hand for a combination of exhibits, hands-on labs and a full agenda of talks and panels.

Guidance Software has new products to show us, and we get updates on a wide range of subjects. It would be interesting to look back at the agendas over the years (I have lost count) over which I have been coming to this event. Security issues bulk larger now, and we are seeing more nuance in the eDiscovery side as the software moves towards yet more cost-effective ways of getting lawyer eyes on reviewable populations (that is, the material worth reviewing) as quickly as possible.

US eDiscovery articles in brief

Consistent with my condensing approach to current events, I give a brief summary of some of the US articles which have ended up in my Evernote store while my attention has been on the roll-out of the Jackson reforms. Rule changes and predictive coding remain at the top of the agenda. The best service I can do is simply to point to some of them.

Judge Peck’s refusal to recuse in Da Silva Moore remains after appeal

The title of this LTN article, Judge Peck’s Refusal to Recuse in ‘Da Silva Moore’ Remains After Appeal says all you need to know. A crisp opinion from the US Court of Appeals finally disposes of the recusal sideshow to the predictive coding sideshow, leaving the parties free at last to focus on the merits of the case. The LTN article helpfully includes links to some of the articles which told the story as it unfolded.

How good is your predictive coding poker face?

A two-part article by Matthew Nelson of Symantec introduces segments of video in which Maura Grossman, Craig Ball, Ralph Losey and Matthew Nelson discuss various aspects of the use of predictive coding by reference to a poker game. The articles are called How Good is Your Predictive Coding Poker Face? Part One and Part Two. These are authoritative speakers and this is an interesting way of serving up some of the issues and recommending approaches to them.

Technology assisted review: unlocking the black box

A helpful article by Randall Burrows of Xerox Litigation Services is headed The next step for technology assisted review: unlocking the black box. Its subtitle, A step-by-step approach to establishing a more defensible methodology, is fulfilled by a straightforward guide to the support which a lawyer can bring to bear on the validation of his or her approach to the use of technology assisted review and, by implication, to challenging the approach taken by opponents.

Discussing eDisclosure round the table at the Brewery

The fact that we enjoyed ourselves at the TGCI eDisclosure event in London did not make it any less of a serious forum for discussion. The round-table format, the complete absence of PowerPoint slides, and the invitation to delegates to interrupt as they wished made it an extremely lively and useful exercise.

There are a limited number of ways in which you can organise conferences and seminars aimed at dispensing information and promoting discussion about eDisclosure / eDiscovery. The conventional approach, a series of lectures and panels delivered from a podium or platform to delegates in rows of chairs, is ideal in many ways, particularly when the intention is dispensing information from the few to the many – that is what delegates generally expect, and I am told by someone who organises events across many different sectors that lawyers are not particularly interested in alternative formats – even government delegates look for more imaginative approaches.

I am not being critical here – I have no quarrel with the conventional approach and am rarely an enthusiastic participant in those events where you are divided into tables and given a whiteboard, a set of scenarios and some poor sap who must report back to the conference.  One approach I do like, which we are seeing more often, is the “led discussion” where we get down from our platforms, pull our seats into a circle and talk around a subject at the behest of a nominated group leader.

Blog posts on eDiscovery | eDisclosure in January 2013

Here is a list of the 58 blog posts published in January 2013 on my Commentary Blog and Updates Blog. They got 9,464 page views between them.

As mentioned in a recent post, the web site has been smartened up a little as part of a general review. Some old material has gone and there will be new sections, not least about the Jackson Reforms, shortly (seeing the final form of the rules would be a a good start).

A spate of post-LegalTech posts is on its way, spread across the next few days.

Where are we now on legal hold and self collection?

Commentators in other jurisdictions, me included, have expressed wonder at the procedural hurdles which US case law developments in the past six years have placed in the way of parties preparing to give discovery. We don’t criticise the need to do the job properly – to preserve that which ought to be preserved and to collect it in a manner which is capable of being defended in court – but the procedures as they have developed appear to have paid more attention to formal niceties than to the actual needs of most cases. Requirements developed to meet the worst cases seem to have been applied to every case, regardless of the degree of actual risk that important documents will be missed or destroyed.

There are signs, perhaps, that US courts are stepping back from positions which are now seen as major contributors to wasted expense, as rule-makers and judges rethink the balance between cost and utility and consider how to control (and if necessary punish) those whose conduct puts really does put justice at risk without burdening every party to every case with expensive processes which are disproportionate to the value of the case and the risk of injustice.

Some of the things said at the Georgetown Advanced eDiscovery Institute CLE in December give clues as to the thinking which is going on as to the future. I will come back to that in another articlee (or two) but it is worth reviewing where the US has got to so far and to consider how parties can minimise the risk of getting it wrong. One of the specific issues is the extent to which it is prudent for companies to collect their own documents and data.

This is one of the subjects covered by Daniel Lim, VP and General Counsel of Guidance Software, in an article called Rolling the Dice on Legal Hold and Self-Collection: Not Worth the Risk on the Corporate Counsel web site. The article  gives a good summary of the present state of the US law relating to legal hold obligations for civil proceedings and to self-collection, that is, the collection of relevant documents and data by the party itself rather than by experts directed by lawyers. Although the article’s focus is on US civil proceedings, much of it applies in other jurisdictions.

Blog posts on eDiscovery | eDisclosure in December 2012

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.

Short eDiscovery Updates to end November 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.

Short eDiscovery updates to 27 October 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.

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The use of technology in regulatory investigations

Hobs Legal Docs was the sponsor of an interesting article in The Lawyer recently which emphasised the need to use technology to respond quickly to regulatory demands.

Those who find themselves overwhelmed by the timetables for eDisclosure / eDiscovery in civil litigation may like to consider the pressures faced by companies and their lawyers when a regulatory investigation turns up.  There are no nice long periods for reflection when decisions are to be made not only about the proper scope of the discovery exercise but also about the tactical and strategic implications.

Litigation searches are generally bounded by defined issues, and one can usually identify a date range and a handful of key custodians. Regulatory investigations often have no such boundaries and the question to be answered very quickly is “How deep is this pit?”. That in turn dictates the approach to be taken vis-a-vis the regulator, ranging from aggressive rebuttal to grovelling contrition, often backed (in cartel cases, for example) by a potential hurry to be the first to come clean – the “race for leniency” as one contribuotr puts it in the article.

If the use of technology like predictive coding seems optional in some cases, it is hard to see alternatives for some of these regulatory investigations. There is no time to set junior fee earners to making document trawls and it is vital to put senior lawyers to work at once to “teach the system how to look at documents in the way lawyers do” (as Mark Surguy of Eversheds put it in his Dublin speech last week). A ticking-off from a judge is a mild consequence compared with the effect on the share price and other significant things if one gets this reaction wrong.

Guidance Software webinar today: Five best practices in eDiscovery readiness

There is a webinar today at 2:00pm EDT given by Patrick Burke, Assistant General Counsel at Guidance Software, and me, with the title Five Best Practices in eDiscovery Readiness. Corporations of any size face litigation, regulatory requests, or the need to undertake internal investigations at very short notice. Regulatory requests in particular are increasing in number and can have serious implications for the organisation. The need to find and produce electronic documents quickly will not go away.

Our webinar identifies five best practices which organisations should adopt to put themselves in the best position to face such demands and to find what they need promptly and efficiently. The side-benefits lie partly in the improved negotiating position which results from being able to show that you are on top of your data and partly in the saving of expense – it is a costly business conducting your information governance at short notice at lawyer rates, which is generally the effect of waiting until you have been hit.

The webinar includes discussion about developments in UK civil procedure which are aimed at identifying data sources promptly for the purposes of the discussions which are now required before the first case management conference. Being able to meet this this obligation is a tangible example of the advantages which flow from investment in the technology and processes described in the rest of the webinar.

The registration page is here.

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Short eDiscovery updates to 13 October

Most of these updates on my Google Plus site are from the week ending 6 October. After that, I was at the Masters Conference in Washington and at an event given by Symantec-Clearwell at Tower Bridge, with no time to write. I am content, in fact, to come late to my summary of these short posts – it gives s second life to subjects which would otherwise sink in the Twitter-stream.

I keep a large stock of things to write about thanks to my favourite software product, Evernote – I dip into it whenever there is a spare moment and pull out something to link to. That is fairly easy; the subsequent linking – via LinkedIn and Twitter at the time of publishing, in these updates, and (in due course) in the master list of articles on my web site, is extremely time-consuming and a major addition to my work-load. The payback comes in the form of SEO (Search Engine Optimisation) both of my own articles and of those to which I link.

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UK-based Legal IQ makes a success of their Washington eDiscovery Exchange

There is much more to organising a conference than the mechanics of bookings, venues and other practical things. It requires a good understanding of the industry to which the conference is addressed, a wide range of connections in that industry, and the ability to attract sponsors, speakers and delegates in circumstances where the interests of each of these groups is dependent on the others –  delegates come for the programme, speakers like to know that they will have an audience, and sponsors expect to reach delegates who might be interested in the products and services. That is not a circle which I would care to handle.

Now add a dimension – a London-based conference team is organising an eDiscovery conference in the US, the spiritual home of eDiscovery, in competition with many other providers for whom this is home territory. A big hat tip, therefore, to Abi Manders and the team from Legal IQ in London whose Information Governance and eDiscovery Strategy Exchange, held outside Washington DC in September, was a great success. Jason Velasco, writing in eDiscovery Journal, described it as “one of the most intense structured education/networking schedules I’ve seen in our industry”. I fully endorse that description.

I always bid high when asked whom I would like to see on my panels at these conferences. Years ago, this group asked me who I would like to see on a London panel. “Grimm and Facciola” I said ambitiously. I got a call a few days later: “They have agreed to come. What would you like to do with them?”.  The result was the first proper US–UK judicial eDiscovery panel, with Judge Grimm and Judge Facciola representing the US and Senior Master Whitaker and HHJ Simon Brown QC for the UK. I and Patrick Burke from Guidance Software made the most of that, setting a high target to beat with stimulating discussion and exchange of ideas from these leading judicial thinkers.

When asked the same question this year, I asked casually for Mr Justice Frank Clarke from Ireland, for any judge involved with the New South Wales Practice Note SC EQ 11, for one of the two UK judges named above, and for any one or more of the handful of US judges (and it is still only a handful) who knows the subject and can speak informatively and entertainingly about it. And that is what I got –  six judges from four jurisdictions on one panel, each of them expert both in their own jurisdictions and in the principles which apply in every jurisdiction. There is more on this in my summary of the panels themselves.

Short eDiscovery updates to 29 September

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.

New data sources drive innovative eDiscovery forensics at Millnet

The appointment of Stuart Clarke to head a new forensics function at Millnet gives me an opportunity to set out here something which I cover in some of my eDisclosure / eDiscovery talks. The general theme there is that, important though it is to collect, in a proper and defensible manner, the multiple gigabytes of e-mail, Microsoft Office files and the other conventional sources of electronic evidence, those who stop there and consider the job done might well be overlooking apparently trivial sources on which cases can turn.

Stuart Clarke has been at Millnet since earlier this year. We met at CEIC in Las Vegas in May, a conference which, thanks to its Guidance Software heritage, brings together the brightest and best in data collection skills. One of my own panels there, delivered in conjunction with Craig Ball, was about social media; my focus was on the potential traps which lie in the data stored by apparently trivial applications which are used every day but which might easily be overlooked when one comes to collect all relevant data.

My context was not so much the formal obligations and the sanctions which may follow from failing to comply with them, but the fact that the evidence which they produce and hold might prove or disprove something critical to the dispute. Some of my own examples were about an application called Evernote, to which I revert below. I discovered from talking to Stuart that he was similarly interested in the implications raised by this particular tool.

Short eDiscovery updates to 15 September 2012

This continues my new practice of summarising posts, mainly about eDiscovery, which have appeared on my Google Plus page recently. There are 26 of them in this summary, which points to a busy week (now two weeks ago) of announcements and stories. Google still can’t be bothered to show the full heading of these pages, or lack the competence to do so. They index well, however.

I omitted last time to break the summary after its introduction, and pushed off to the US leaving a long list at the top of the blog. My apologies to those who came in search of the next article of substance. That follows shortly.

Short eDiscovery Updates to 9 September 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.

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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

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LawTech Europe Congress in Prague on 12 November

My series of articles on future eDisclosure/eDiscovery conferences keeps being interrupted by my attendance at current conferences, most recently by a week at ILTA 2012 in Washington D.C. The conference season now seems to last all year, at least for those of us (and I am not the only one) whose interests embrace the US, the UK, Asia-Pacific and continental Europe.

For eDiscovery purposes, the expression “continental Europe” has hitherto meant Germany or the Netherlands. That does not mean that no other country has eDiscovery problems to solve, merely that conference organisers can be reasonably sure of getting audiences in Germany and Holland.  As Spain, Portugal and Italy drop off the economic map, so eyes turn east to the area to the area known geographically, culturally and politically as Mitteleuropa, whose Western edge includes Germany and which embraces, amongst other countries, Austria, the Czech Republic, Hungary, Slovakia, Switzerland and Poland.

The economic standing of these countries varies as much as their languages do, and it is no more than a geographical convenience to group them together. One measure of economic importance is the number of law firms and international consultants who think it worth their while opening offices in one or more of the region’s capitals. They are there.

More or less bang in the middle of this vast area sits Prague, the capital city of the Czech Republic and, so Wikipedia tells me, the fourteenth largest city in the European Union.  It is here that Frederick Gyebi-Ababio has established a new player in the international legal technology conference league with the LawTech Europe Congress, due to take place on 12 November.

Proportionality and a choice of technology from Hobs Legal Docs

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

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

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

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

My Google Plus eDiscovery posts to 14 August

A longer list than usual, partly because many interesting things came along and partly because I was called away for over a week before I had the chance to list them.

Law Society Gazette – No replacement yet for £10m High Court IT failure

APT Search white paper on recruitment and eDiscovery

Dangleboris – how to get the world to do your PR for you

Clarification of the DPP’s role in the Twitter Joke Trial

Nuix: Taming information with eDiscovery

Rob Robinson: eDiscovery vendors on Twitter

eDJ Group snaps up Marilyn Gladden for eDiscovery channel media services

Commonwealth Legal becomes a Relativity Consulting Partner

Greg Buckles of eDJ on CVEDR – Monkeys and Magistrates in Monterey

ESIBytes Recording - Carmel Valley E-Discovery Judicial Panel on Predictive Coding

The Irish Times - Internet is debasing our public discourse

The Lawyer: Scotland to compete with Northern Ireland as low-cost law centre

Kevin Nichols on eDJ: The CVeDR – A Different Type of eDiscovery Conference

First Advantage Litigation Consulting integrates audio discovery and conceptual search, and enhances analytics in Global RPM 5.0

Epiq Systems panel debate: judicial attitudes to technology assisted review

Nuix webinar: Deep dive into intelligent investigation with Nuix 4

You may like this Olympic parody…

Thomson Reuters on FTI survey: lawyers see benefits of computer coding, with caveats

kCura at No 15 out of 100 in Forbes’ list of Chicago’s top 100 digital companies

The relationship between keyword search and technology assisted review – Sheila Mackay of Xerox

Video - Proactive Information Governance with Nuix

Blog post re-run: Conor Crowley’s guidance on the Duty of Competence in e-Discovery applies beyond the US

While other politicians struggle to speak comprehensible English, Boris recites an Olympic ode in Latin

Guy Burgess on the NZ Law and technology blog: When will New Zealand get e-filing?

Simon Price of Recommind – Concept over keywords – why search still matters for law firms

Barry Murphy of eDJ in discussion with Mary Ann Benson of Epiq Systems: Tangible Examples of TAR

Epiq Systems Opens Hong Kong Document Review Centre

The Lawyer: First LIBOR action is in the Birmingham Mercantile Court

Howard Sklar of Recommind: Are Seed Sets the New Keyword?

Craig Ball: Train, Don’t Cull, Using keywords

Craig Ball (again), this time on the safe-keeping and recovery of irreplaceable data

Millnet’s Charles Holloway on a devilish problem

Guidance Software E-Discovery Resource Center

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Recent posts on Google+ on eDiscovery and other legal subjects

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.

Events

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

Other

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

Politics

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

Photographs

Random photographs from a drive from Las Vegas to Carmel

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More about the Legal Hold and ECA Optimization Service from Guidance Software

I referred in a recent article to a new service offered by Guidance Software to users of its EnCase eDiscovery software. It sounded sufficiently interesting for me to schedule a call with Timothy Bailey, Senior Director of Professional Services at Guidance Software, to find out more about it, and I spoke to him and to Patrick Burke, Assistant General Counsel at Guidance Software, last week.

What makes the story of general application, rather than merely a description of a specific service, is that it illustrates the gap which exists, almost inevitably, between those responsible for IT (“the lights which blink” as Debra Logan of Gartner says) and those responsible for legal and compliance matters. Software developers add value to their tools by building in extra functionality making use of the data and, whether or not this forms part of the purchasing decision, the existence of the additional functionality may not be known to those n the legal department who could benefit from it. This extends all the way along the software chain – many review tools have levels of functionality which lie unused because their value, or even their existence, is unknown to those who might benefit from them.

Guidance Software’s new Legal Hold and ECA Optimization Service is briefly described in this press release.  Guidance Software has more than 300 organizations which use its EnCase eDiscovery software for in-house e-discovery. Since version 4, EnCase eDiscovery has combined an automated legal hold and ECA functionality with the primary collections function of EnCase eDiscovery.

The first phase is a one-day workshop with a member of Guidance Software’s Assistant General Counsel team qualified to talk about the legal context and best practices for both legal hold and in-house first-pass review using EnCase eDiscovery. They are also in a position to discuss with the legal team how they normally conduct their review, with the possibility that a better and more efficient way may result from use of the Legal Hold and ECA tools within in EnCase eDiscovery.

The upshot of the meeting with the Guidance AGC is a design requirements document. Using this, a technical consultant comes in later to help deploy and configure the legal hold and ECA tools, building e-mail templates, adding custodians and doing other things which leave the customer up and running and ready to go.

An additional service, not part of the basic level, is the conversion of legacy holds so that a company’s entire hold obligations are gathered in one place.

By coincidence, or perhaps not, Guidance Software has just reported a record number of new customers for its EnCase Enterprise platform in the second quarter of 2012. The press release is here. This is obviously good news for Guidance Software, but I think it is consistent also with a growing trend by corporations to take more control of their eDiscovery by bringing more and more of it in house.

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Keeping up with developments at Guidance Software

New tools and initiatives keep arriving from Guidance Software, helping to support Guidance’s position in the “Leaders” quadrant of Gartner’s 2012 Magic Quadrant for eDiscovery Software.

That news broke whilst I was at CEIC 2012, Guidance Software’s growing (1500 delegates this year) conference at Las Vegas in May. The development news then was of EnCase App Central, a marketplace for scripts and third-party apps which can extend and automate EnCase functionality.

Since then, we have seen the launch of Guidance Software’s new Legal Hold and ECA Optimisation Service, which provides a three-day on-site visit which begins with a one-day consultation with a member of Guidance’s Assistant General Counsel team to review a company’s legal hold and ECA requirements and identify means with which the organisation’s use of EnCase eDiscovery can be optimised. Guidance’s professional services consultants can then be available to provide technical assstance to accomplish the optimisation.

This week brings an initiative of a different kind as Guidance Software signs an agreement with Japanese network integrator Network Value Components to distribute EnCase in Japan. The press release is here.

I have a call fixed for later this week to find out more about all these developments and initiatives.

One of the advantages of having an in-house Assistance General Counsel team is that you have the talent on hand to write articles about the industry and about developments in jurisprudence and thinking rather than merely about software and technology. Guidance Software’s e-Discovery blog seems to have taken on a new lease of life, with a new look, a wider range of contributors and space to develop ideas. The most recent article is by Chad McManamy and called “Championing” the Preservation of Keywords in eDiscovery. It is a thoughtful analysis of the problems facing Magistrate Judge Nolan who is considering one party’s demand that the other use predictive coding or similar technology. I know Chad McManamy but had not come across his writing before – good, readable stuff about a subject of importance.

Going back through the blog, regular and eloquent contributor Patrick Burke writes about Georgetown Law’s eDiscovery Training Academy  which Guidance Software is supporting for the second year running.  You can also find Patrick Burke’s report on the Judicial Perspectives Panel at CEIC.  These posts deserve wider audiences – I am not the only one with a keen interest in this market who relies almost exclusively on Twitter for my sources. What is not on Twitter doesn’t happen, so far as I’m concerned, and it is a shame to miss articles like this.

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Hobs Legal Docs takes Relativity and makes a senior appointment

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

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

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

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

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

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

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Metrics, Social Media, Magistrates, Monkeys and Mitigating Risk at CEIC 2012 in Las Vegas

I am not above inventing a headline whose connection with the subject-matter is less important than its potential for attracting readers curious to know what the article has got to do with eDiscovery. In this case, the headline is an honest, if partial, summary of what lies below: metrics are the key to eDiscovery decision-making; social media is the fastest-growing source of potentially discoverable data; Magistrate Judges turn up to share their wisdom with us; monkeys appear twice, once as part of the question “who are you talking to?” and once in an echo of a recent post of mine about cross-border discovery and blocking statutes; risk mitigation is the theme which binds them all together.

I have been at Guidance Software’s CEIC 2012, a pool of civilised learning and meeting in the cultural and topographical deserts of Nevada. There have been more than 1,500 attendees here from 43 countries, with 53 exhibitors and 118 information sessions. I have been here since Saturday; the show has now closed and I am stuck here until tomorrow, giving me the first opportunity to write anything since I arrived. The rest of the time has been filled with preparing and giving my own sessions, attending excellent presentations given by others, and with parties, dinners and useful conversations by the pool.

Conference topics indicate the important eDiscovery and eDisclosure themes

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?

LawTech Futures 2012 – the Future of Legal Conference Marketing

I did not attend LawTech Futures 2012 – the Future of Legal Technology, the conference organised by Netlaw Media and the Orange Rag’s Charles Christian last week. There is enough to do on my own patch without straying into the wider pastures of general legal technology, and I reckoned that I would hear enough about it to save me the trouble of going. The expression “hear enough about it” proves something of an under-estimate, and we have not even seen Charles’ own report yet.

Comprehensive reporting

He can probably save himself the trouble, in fact, thanks to the comprehensive report of Brian Inkster of Inkster’s Solicitors, on his Time Blawg. Headed LawTech Futures 2012 Reviewed: the Search for the Holy Grail of Legal Technology Conferences has Begun!, Brian’s report amply justifies my decision to wait and take it all in at second-hand. When you add the enormous quantity of high-quality photographs which have been posted –  and this is just the first batch apparently – physical presence was clearly unnecessary.

I like the idea, incidentally, of photographing Charles Christian from below with half his face in darkness as he delivered his Brave New Technology Future speech – the Ghost of Christmases which will never come if you don’t get your act together, perhaps.

The already apocalyptic effect of this is enhanced by converting the photograph to black and white.

Good marketing

Some broader points arise which are of importance to anyone organising conferences aimed at lawyers and law firms. The marketing was brilliant – it obviously helps  that Netlaw Media and Charles Christian are both professionally concerned with marketing and promotion in this space and have the skills, the contacts and the platforms to reach both sponsors and delegates. The post-event marketing, which is important for more reasons than the attraction of next year’s sponsors, has maintained that high-quality pitch.

Recent eDiscovery Posts on Google Plus

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

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Taking stock of the eDiscovery world

This is a good moment to pause a little and look around the eDiscovery / eDisclosure world.  The wide range of topics which make this such an interesting field are all getting an airing at once. The stream of useful and relevant tweets is such that I had to turn it off to get anything done. If it appears to have a largely US flavour, much of it also has relevance in the UK and elsewhere.

I do not feel under any particular pressure to capture it all as it happens, and there are back-room things – the agendas for three forthcoming UK conferences and a White Paper, for example – which have some priority in terms of time allocation than the news stream which, if its elements are of importance at all, will still be so in a week’s time.  My web site also needs some attention to logos and indexes. It is helpful, nevertheless, to list some of the pending stories, if only to head off polite suggestions that I may have missed them. Since the point here is speed, I will ignore my usual rule about hyperlinking to everything referred to.

My involvement in or attendance at some recent events will be covered shortly. Monique Altheim has released videos of the eDiscovery sessions we did at CPDP in Brussels.  Nuix hosted a thought-provoking dinner at LegalTech which stimulated thought about the real meaning of “innovation” in eDiscovery.  It has been said of the cross-border panels hosted at LegalTech by Huron Legal and led by Nigel Murray that “the substantive information conveyed was top shelf” and there is talk of a re-run. Data protection and privacy move back up the agenda anyway thanks to the draft EU data protection regulation.

Integration the target as Guidance Software buys CaseCentral

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.

A further reminder about my Google Plus site

I have yet to do the necessary cross-linking between the various places in which I put eDiscovery information. At the moment, it makes more sense to push the stuff out there and worry in due course about making a cohesive whole out of it.

Various things come together here. One is that LegalTech New York starts  on 30 January. Many providers of eDiscovery software and services make announcements before or at LegalTech, and any ambition to capture them all is doomed to failure unless one is content with a copy/paste approach and has nothing else to do.

I am doing two sessions of my own there (one  on information governance with Nuix and a double session on cross-border eDiscovery with Huron Legal).  There is the usual problem of trying to make sure that I meet up with as wide a range of people as possible, in circumstances where pre-booking them all (as they sensibly would like for the  sake of their own diaries) necessarily limits the number of engagements which I can fit into a day and cuts me out of the ad hoc meetings which you get by just being around (you are not “around” if you are shut up in meeting rooms for three days).

Guidance Software Webinar – Migrating to the Cloud: Navigating the E-Discovery Challenges

Guidance Software has provided a link to a recording of a live webinar which went out to a large audience – perhaps not surprisingly given the subject-matter and the participants. Its self-explanatory title is Migrating to the Cloud: Navigating the E-Discovery Challenges.

Scott Carlson is a partner at Seyfarth Shaw whose practice is exclusively devoted to discovery and the issues it raises. I have personal experience of his eDiscovery knowledge because we have sat together as members of Guidance’s Strategic Advisory Board. Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software, was the moderator at the first webinar I ever recorded, and someone I have shared platforms with in the US, the UK and Germany.

This webinar, introduced by Guidance Software’s Russ Gould, considers in a very practical way the e-Discovery challenges which are faced by corporations who have moved, or are planning to move, data and applications to the cloud.

The registration page is here.

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Equivio near duplicate and e-mail threads integrated into Relativity

Equivio and kCura have got in ahead of the LegalTech announcements flurry by launching an Equivio tab In Relativity. “Integration” means just that – Relativity users access Equivio’s analytic functionality without either they or the data leaving Relativity.

The words “efficient” and “seamless” appear in the press release from Equivio and in Relativity’s product information page. Quite apart from the benefits to the user experience, the integration should mean that future developments by both companies should be easily absorbed.

This is one of kCura’s growing number of Ecosystem Applications which include Digital Reef, EnCase eDiscovery by Guidance Software, Nuix , Trident Pro from Wave Software and audio and video forensic search by Nexidia. The Ecosystem was only launched last July, and Relativity’s pulling power continues unabated, with further integrations promised shortly.

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CY4OR signs partnership agreement with Guidance Software for EnCase Enterprise

UK-based forensics company CY4OR has reached an agreement with Guidance Software under which CY4OR will offer and support Guidance Software’s EnCase Enterprise Platform. This is a logical development for CY4OR, building on their nine-year history of forensic investigations and collections work which has already brought them into corporate electronic disclosure with a website dedicated to that part of their work.

A glance at the information page for EnCase Enterprise will quickly show why CY4OR has gone down this route. The passage about ….

a proven, cost effective method to investigate HR related matters (such as corporate policy violations, harassment complaints or computer misuse allegations), IP theft, fraud, computer security incidents and more

… ties in with and extends CY4OR’s established skills in this area of forensic investigation. The ability to collect data from servers and workstations on the corporate network without disruption to the business is important for both cost and time reasons – investigations of this kind almost invariably require urgent, if not instant, attention, but business must go on whilst it is happening.

Related as I am to both companies through their respective sponsorships of the eDisclosure Information Project, I look forward to hearing how the partnership goes and will report back when it has had a chance to bed down.

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Guidance Software adds Data Reuse Feature to EnCase eDiscovery

There are two reasons for referring you to the latest additions to Guidance Software’s EnCase eDiscovery. The first is the addition of functionality to identify and reuse data which has already been collected, allowing searches of data collected for previous litigation or investigations. The second is the video which Guidance has released to explain the new functionality, a model of simplicity and clarity.

EnCase eDiscovery is Guidance Software’s flagship application for network collection of data from across all or any of a company’s data sources. It has moved on from mere collection (not that collection is trivial) to include legal hold, first-pass review, pre-collection analytics and other tools to enable decisions to be made quickly and early in the litigation or investigation. The reality for many companies is that the same custodians and the same time-frames recur in multiple cases – however wide or narrow the definition of a “key player” (itself an open question as a result of the KPMG case) the relevant decision-making and information-flow in most companies lies in relatively few hands. Companies therefore find themselves collecting the same data over and over again.

The data reuse feature is designed to minimise this. However efficient a collection is in terms of network traffic (and Guidance prides itself on this) the ability to make use of existing stores cuts down the traffic and speeds up collections, particularly from mobile workers. I will demonstrate my own commitment to data reuse by pointing you to an article about the new feature by Evan Koblentz at LTN.

Guidance Software has been revamping its website which is now one of the best, with simple navigation to the main headings, clear divisions between different types of information and an understated colour scheme which catches the eye precisely because it does not scream for attention. This extends to the video which Guidance has released about the new data reuse feature, whose simple illustrations (backed by a sober narrative from Russ Gould, Director of Product Marketing) convey so much more than the breathless excitement endemic in most American marketing materials.

I was present at the meeting of Guidance Software’s Strategic Advisory Board when this development was first discussed and, as with other recent developments from the company, it is interesting to trace a new feature from its origins in user requests through to release.

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

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

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

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

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

The Emerging Technologies Panel at ILTA 2011: remote collections and predictive coding

It would be fair to say that, more than two weeks on, my notes of  the Emerging Technologies panel at ILTA are less decipherable than I might have hoped. That is in fact a tribute to Daniel Lim of Guidance Software, Dominic Jaar of KPMG, Keven Hayworth of Morgan Lewis and Howard Sklar of Recommind, who, moderated  by Greg Buckles of eDiscovery Journal who made more good points than I could record.

I can take a shortcut by referring you to Greg Buckles own article ILTA 2011 – That’s a Wrap which gives a good summary of the ground covered. Some in the audience seemed disappointed that only two topics – remote collections and predictive coding – were covered. It is hard to see that much more could fit into a single session, or that any two topics are more important just now than collections which are simultaneously straightforward and comprehensive and the modern ways of cutting the time and cost of review.

The remote collections section focused on two apparently disparate ways of making forensically-sound collections without the risks implicit in custodian self-collection or the delay and expense of sending a forensic expert to each location. Dominic Jaar put the word “remote” into context by referring to Canadian mining companies 30 hours journey time away and to foreign collections which involve bureaucratic issues like work visas as well as technology barriers like low bandwidth. Cross-jurisdictional collections involve quite enough in the way of legal issues without these extra implications. Where it is not possible to collect across the network, a portable device using a pre-programmed dongle to define the scope of the collection and to ensure consistency across multiple collections is a more than adequate, and low-cost, alternative.

However the collection is made, the lawyers must strike a balance between the expense implicit in over-collection and the risks of under-collection. Dominic Jaar neatly bridged the session’s two topics by wishing for a merger between the selection power of predictive coding and the collection capabilities of remote collection tools. Perhaps we will get there by 2013, but we have first to get acceptance for predictive coding as a defensible technology. This, as Greg Buckles indicates in his article, was the main theme of the predictive coding section of the session.

The Value of eDiscovery Self-Collection Tools

I mentioned in a recent post that membership of Guidance Software’s Strategic Advisory Board brought the pleasure of seeing developments work through from concept to production to adoption. One of the most exciting of these was Guidance’s EnCase Portable. The subject comes up now because Sean Doherty in Legal Technology News wrote an article headed Compare and Contrast: eDiscovery Self-Collection Tools which, as well as mentioning some of the players, including  AccessData, Guidance Software and Pinpoint Labs, gives a good summary of the value of tools like this and an explanation of when and how they are useful.

Unlike Sean Doherty, I am not in a position to do a “compare and contrast” piece on these products. I do, however, know two of the companies well because Guidance and  AccessData are sponsors of the eDisclosure Information Project.  I have suggested before that these tools have a place not merely in the hands of professional collections experts but within companies and law firms. Not every collection warrants the attendance of an external expert: an HR department may think it necessary urgently to collect data from an employee’s laptop; a lawyer may be interviewing someone whose potentially relevant laptop is right there in front of them.

The names of these products are pleasingly apt –  Guidance Software’s EnCase Portable and AccessData’s AD Triage neatly summarise their functions in their names. It would not take much for a company or firm to compare these leading products and to equip someone with the skills to use it

They have another benefit as well. Small and inexpensive they may be, but they offer a convenient and accessible way of illustrating to lawyers and others what kinds of information can be found on and taken off a computer. This can be an eye-opening experience for lawyers who might otherwise assume that information of this kind is lost or otherwise unavailable. Looked at from one point of view, this is positive skill to have; looked at more negatively, the failure to realise that potentially crucial evidence can be tracked is potentially negligent when mainstream tools of this high capability are available at low cost.

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Drawing conclusions from Guidance Software’s Q2 2011 financial results

I do not claim any expertise in deciphering trends from the quarterly figures published by the leading players in the eDiscovery industry. I know what I am good at, and the analysis of corporate accounts is not on the list. I shy away from the subject for other reasons as well:  if one comments on one company’s figures then others might expect theirs to be reviewed; if you report on good figures then you should equally draw attention to disappointing ones.

Occasionally, however, one can draw conclusions from the narrative part of the accounts which say something about the industry generally, and I do occasionally draw attention to the figures for this reason.

If I have a particular affection for Guidance Software it is partly because it was the first big player in eDiscovery to back the eDisclosure Information Project. I have done many conference sessions with Guidance over the years and enjoyed them all, both for their own sake and for the evidence of commitment to market education which they bring; I have for three years sat on its Strategic Advisory Board, having the pleasure of tracing progress from those discussions through to product launches and other developments. Guidance Software also has links to other players including a new connection with kCura, the latest sponsor of what I do.

There are other reasons, also, for an interest in Guidance Software’s figures: sitting as they do at the front end of the eDiscovery process, their numbers say something about the state of the industry generally; in addition, sales of network collection software to the higher end of the corporate market suggests that companies are taking seriously the compliance and investigations benefits of a standard collections process as well as the requirements of litigation.

The Q2 report itself is here. The highlights include a 5% increase in overall revenue against the second quarter of 2010, with product revenue flat but services and maintenance revenue up by 11%. The statement by President and CEO Victor Limongelli draws attention to the launch of Version 7 of EnCase Forensic, to Guidance Software’s position in the Leaders’ Quadrant of the Gartner Magic Quadrant for eDiscovery Software, and to the addition of 65 new customers on the EnCase Enterprise platform, bringing the total to more than 1,000 customers, a figure which, I am told, includes over 60% of the Fortune 100.

Any company willing to forecast year over year growth of 8% to 12% (that is, between $99 million and $103 million) in this very public context at the half-way stage in the year obviously has confidence not only in its future but in the prospects for the market generally. I asked Victor Limongelli for his observations on this; he said “Customer adoption is accelerating – we have added more new customers in the first half of the year than we did in all of 2010.  Every company needs to address unstructured, unmanaged data, and we are seeing more and more of them doing something about it.”

Not everything which is collected goes through to being processed, analysed and reviewed – that is part of the point of having an easy way to collect data which you might need as opposed to merely that which you must collect. Nevertheless, the corollary is that those who sell review applications and offer software and services need to see an increase in collections to underpin their own growth. These figures therefore look promising not just for Guidance Software itself but for its rivals in the collections space and for those who sell downstream solutions and services.

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Georgetown Law eDiscovery Training Academy crosses the bridge

The technology I really want to see is a time machine or some kind of teleportation device. I once attended conferences in Barcelona and Sydney in the same week. I have had breakfast in Sydney and dinner in Washington on the same day and, later this year, I have to do a three-day conference in Germany and a two-day conference in Washington in the same week. I have had to accept that I cannot be with Sedona in Lisbon and with InnoXcell in Hong Kong next week (Hong Kong wins), and I was equally sorry last week that I could not be simultaneously in Frankfurt and Georgetown.

The Georgetown event was the Georgetown Law eDiscovery Training Academy. Guidance Software gave copies of its Encase Forensic Software for each delegate to use during the week and Craig Ball explained the computer context and showed how to use EnCase.

The faculty for the five days included US Magistrate Judge John Facciola, Chief US Magistrate Judge Paul Grimm, Michael Arkfeld (Arkfeld & Associates LLC), Jason Baron (National Archives & Records Administration), Maura Grossman (Wachtel,Lipton, Rosen & Katz), Tom O’Connor (Gulf Coast Legal Technology Center),  and Larry Center (Georgetown CLE).

Patrick Burke, Senior Director and Assistant General Counsel of Guidance Software describes the event in two blog posts here  and here, and Tom O’Connor wrote about the wrap-up here. I like in particular Judge Facciola’s comment “this conference crossed the bridge.  I for one can’t go back to superficial lectures any more.  I’ve never seen anything like this.  It’s been a terribly exciting experience for me.” 

Training and education are rather like marketing – we are always looking out for new ways of delivering knowledge and understanding. Events like this take an immense amount of organisation and need the support such as Guidance Software gave to this one. For the foreseeable future, articles, seminars and conferences will be the backbone of the education effort. This event shows us that there are different and more imaginative ways of getting messages across. I wish I had been there.

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

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

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

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

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

Judicial Panel at CEIC has messages for other jurisdictions

Although primarily a forensics conference, CEIC, the Computer Enterprise and Investigations Conference, has an e-discovery track whose purpose is to raise awareness of the context in which data forensics are used beyond the law enforcement where they began. The cross-border panel  in which I took part was one aspect of this. Another regular feature is a judicial panel which was moderated, as usual, by Patrick Burke of Guidance Software.

The panel comprised former US Magistrate Judge Ronald Hedges, now a Special Master, US Magistrate Judge David Waxse and Hon. Donald E. Shelton, Chief Judge – Washtenaw County Trial Court, Ann Arbor, Michigan. Ron Hedges also introduced his pink friend, seen in the photograph below, but we never got to find out what his contribution was to the debate – the others had more than enough to say in the 90 minutes allocated.

These inevitably focus on practice under the Federal Rules of Civil Procedure. Some terminology apart, however, what was said applies equally in any jurisdiction

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

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

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

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

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

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.

All set for the IQPC London Document Retention and e-Disclosure Summit

I do not see much point in describing in detail which sessions look interesting over the three days of IQPC’s Information Retention and e-Disclosure Management Summit, which starts at the Brewery in Chiswell Street on Monday. It is a packed programme, offering serious choices between competing sessions. Even if you are not going, I recommend running your eye down the listings for the three days. They serve as a list of topics which ought to be on the agenda of anyone with a legal or information management function in a company and of those who advise them.

The first day, Monday, consists of six workshops of three hours each. Between them they cover building e-disclosure teams, cross-border disputes, early case assessment, proportionality, compliance, and the deceptively simple question “Where is the data?”. The speakers come from major players in the UK, EU and US litigation and investigations and the three-hour time slots offer interaction with the audience which is not always possible in the standard sessions. I did one last year; the time flew by and the panelists, as well as the audience, gained much from taking part.

The Tuesday sessions put a strong emphasis on regulatory requests and investigations and on information management, with a single track in the morning and three tracks in parallel in the afternoon. There are, again, some strong speakers here with hands-on experience at the highest level and some serious conflicts when it comes to choosing which of the afternoon sessions to attend.

My own decision-making, at least, is rather easier on Wednesday since I am involved in some of the panels myself. We open with the by now traditional US-UK judicial panel with Judge Peck, Judge Grimm and Judge Facciola from the US, and with Senior Master Whitaker and His Honour Judge Simon Brown QC flying the UK flag. Patrick Burke of Guidance Software moderates as usual.The key words in the session title are “providing effective leadership” and that is what we get from these five judges in their respective jurisdictions. It is perhaps not appreciated how significant this annual panel has been in generating valuable and practical understanding which informs judicial thinking on both sides of the Atlantic. I attend the equivalent panels in the US, and the trade in e-discovery / edisclosure ideas is now two-way. The UK is the second-largest legal market in the world, and no-one took any notice of us on this subject four years ago.

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

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

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

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

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

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

Guidance Software adds forensics and ediscovery for iPad and iPhone

Guidance Software, best known in the e-disclosure / e-discovery world for enterprise network collections with EnCase eDiscovery, has announced a new forensic tool for the Apple iPad, iPhone 4 and iPod Touch. Encase Neutrino also handles Android 2.1 and 2.2.

An iPad may seem small fry compared with the enterprise servers which hold the bulk of a company’s data. The iPad is, however, increasingly the first tool of choice for many executives – it is said that one in five Americans plans to buy one over the next six months, on top of the many who have one already. The volumes on any one iPad are relatively small, but it tends to be immediate in the sense that this is where the employee was working yesterday. It is also right to point out, as Guidance Software’s Frank Coggrave does in this article, that each iPad potentially contains 64 GB of very mobile storage.

It is also interesting to see that IT security departments, who are not unreasonably resistant to the ad hoc addition of external devices to their precious networks, are having to bow to the inevitable in the face of such widespread usage, another point made by Frank Coggrave. When IT departments have spent years trying to encourage user adoption of new technology, they have found it hard to stand in the way of such spontaneous user demands.

Apple products have a way of raising challenges. Giving a talk to lawyers recently, I explained that my iMac desktop had a virtual Windows PC inside it. The word “virtual” obviously passed some of them by, and one could see a mental picture forming of a traditional Windows PC case somehow shoehorned into the slim iMac. What I meant, as I went on to explain, was that you can run Windows within a suitably specified Mac, with its own applications and, potentially, a great deal of data, all invisible to those who were not familiar with the concept of a virtual PC. Forensic data collection is not a game for the amateur.

I am not quite ready to abandon my conventional laptop in favour of the iPad, and I will take both to LegalTech next week. I strongly suspect that, by the end of the year, I will be leaving the laptop behind on such trips, and if anyone needs to collect my data, they will have to do it off my iPad, as well as finding the virtual PC lurking in my iMac.

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A reminder about some ediscovery sources plus a mini-conference on video

My plan to update the reference section on my website over Christmas was thwarted by the time it took to move from Windows to Office 2011 on the Mac – one of those jobs for which you allocate an hour or two and are still struggling with a week later. That, perhaps, is a story for another day, perhaps under the “awful warnings” section.

While that remains on the “Pending” list, the turn of the year is an opportunity to point to one or two resources which I use to keep me up to date. These are just the ones which come to mind today so please (please!) don’t write in to say I have missed yours.

Twitter has become the top source, mainly because it happens as it happens. There is a big network of thoughtful people out there, and it does not take long to build a list of those worth following – UK readers might perhaps start with the list of people followed by me @chrisdaleoxford, Jonathan Maas @MaasJonathan and Charles Christian @ChristianUncut and pick the ones who tweet abut things which interest you. That deliberately UK-based starting-point will take you a pre-filtered selection of US, Australian and other sources whose tweets have some bearing on UK thinking. You can always UnFollow if we or they do not live up to expectations.

Like some other forms of activity (so I am told), participation is not obligatory – you can get value from just watching. Having caught the flavour of the conversations, however, you might like to join in – we could do some more users (real-life users, I mean, not just experts who happen also to be lawyers in practice).

Avoid bringing the company to a halt when collecting data

If, as I do, you go round law firms encouraging them to consider the proper handling of electronic data, you realise that it is very hard for them to visualise what actually happens when it becomes necessary to collect documents and other data for litigation, regulatory purposes or other investigations. It s no different within organisations who have not yet had to undertake such an exercise.

I am not here talking of deep technicalities – the lawyers do not really want to know how the technology works, whether at the collection stage or in subsequent culling and review. What is omitted from most of the supplier websites, though, is some idea of what the implications are for the company once the lawyer, whether in-house or external, has put the phone down having set the collection operation into motion.

An article by Victor Limongelli, President and CEO of Guidance Software, is called When it comes to collection, the OS is not your friend, and is concerned primarily with issues such as collecting open files whilst relying on the operating system to manage the collection. Along the way, however, it illustrates the practical point that, however important the reasons for the collection, you cannot bring the organisation to a halt whilst the data is collected. Executives must communicate with each other and with the outside world; a salesman deprived of the use of his e-mail is a wasted resource.

Open files are not the only problem. Before you commission a collection exercise, it is necessary to specify that the interruption to the business will be minimal and that the collection will include not merely those working at their desks, but also those who are travelling or in different time zones.

It is bad enough if you do this as a one-off or rare exercise. What if it is or might become a regular occurrence? I have just published an article about the UK Bribery Act 2010. This does more than merely add yet another implication to the existing list of factors which may make data collection exercises a more frequent event, but is (in words taken from the Huffington Post article referenced in my article), “the new international gold standard in anti-corruption”. Furthermore, the Act extends to all commercial companies, not just the larger ones. Time to have a process, perhaps, a standard way of reacting to demands for documents quickly, for collecting everything, open or not – without bringing the company to its knees whilst you do it.

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IQPC Exchange in Munich: Information Retention and eDiscovery in Europe

The civil law jurisdictions of mainland Europe have no discovery tradition as it is understood in common law countries like the US and UK. The IQPC Information Retention and eDiscovery Exchange in Munich was an opportunity for corporate counsel to find out what matters, why it matters and what to do about it, as well as to meet service providers who can help them. The “adequate procedures” defence given by the UK Bribery Act sets a target which acts as a spur to the initiation of pre-emptive measures regarding information management.

Any discussion about electronic discovery in common law jurisdictions comes freighted with history, not all of it helpful. Common law discovery rules require the exchange of documentary evidence between parties to litigation. Our definitions vary, and our rules, case law and practice can produce different results; there may be more (the US) or less (the UK) skirmishing in advance as to the proper scope of discovery, and different jurisdictions have different ways of measuring compliance and of punishing defaults. The end result, however, is that a lot of documents are handed over. I may have strong views on how we should go about this and about how we can reduce the volumes in play without any risk to justice, but I will fight to defend the principles of common law discovery.

Civil jurisdictions, such as those in Europe, have none of this. I simplify for the sake of brevity, but the general approach in these jurisdictions is that the court decides what documents it needs to reach a conclusion. Those who seek other documents must specify them with a degree of particularity which effectively requires that they can say exactly what they are looking for.

The privacy and data protection laws which limit what you may hand over are less onerous when viewed in the context of this civil framework, for the fairly obvious reason that the discoverable volumes are smaller. It becomes easier to understand the EU Commission’s attitude to the impact of privacy restrictions once you appreciate how little is exchanged. This is the world for which the data protection and privacy laws were invented – Europe not only has incentives for minimising document exchange derived from its political history, but has no tradition anyway of handing over documents in civil proceedings.

US lawyers tend to see an obstructive Europe standing in the way of legitimate demands for information. It looks rather different from the perspective of a French or German company which, with no discovery tradition, finds itself under siege. Its links with US companies, whether as a parent, a subsidiary, sister company, or as just as a business or trading partner, bring demands for US-style discovery which appears to recognise no jurisdictional limits. A range of US authorities claim both regulatory and criminal rights over their documents. The EU has its own regulatory authorities and an unquenchable zeal for interference. There is proactive assertion of the rights of the individual against the state and against corporations. On top of all these external pressures comes the recognition that we cannot just go on collecting information at the rate at which we can now create it – a business incentive added to the external factors.

All this gives a different flavour to e-discovery conferences in mainland Europe, even where the organiser (in this case IQPC) has a well-established London conference with almost the same title, and where many of the speakers are the same as those I meet everywhere else. The Munich event was, in IQPC parlance, an “Exchange” rather than a “Summit”, which means that the corporate counsel (who are the main audience) have pre-arranged meetings with suppliers whose offerings have been pre-matched to their expressed needs. The impression I got from speaking to both providers and delegates was that there was a high compatibility rate. The Exchange format also provides conventional speaker and panel sessions plus the opportunity to mingle and talk in the gaps and over meals. If my primary reason for going to these events is to speak at them, I am equally interested in meeting informally with delegates and suppliers, with as much emphasis on listening as talking.

International discovery, sanctions, ethics and US-UK comparisons at Georgetown

I was, I think, the only UK speaker (or, indeed, delegate) at the Georgetown Advanced e-Discovery Institute. If the primary reason for going was to talk about US-EU differences, there was progress made too on the continuing US-UK dialogue about our respective disclosure rules and practice. There is two-way value in seeing how others see us.

A great deal of ground was covered, much of which illuminated the divide between US and UK practice and procedure. I make no apology for the fact that the result is a rather longer article than my usual ones.

Introduction

The Georgetown Advanced e-Discovery Institute is a polite, learned event, some of whose sessions, one feels, may actually change things, not merely report or comment on them. There is certainly a mood for change, in the sense that no-one involved in US eDiscovery believes that the present approach is sustainable. An outsider sees what appear to be obvious places to start which inevitably centre round the points of differences with one’s own jurisdiction and, indeed, the UK rules came in for much positive comment, as I report below. We in the UK, in turn, need to raise the level at which we discuss the issues, and get more people, particularly judges, to engage in that discussion in the manner so impressively displayed at Georgetown. We might then see a convergence between our rules and the way they work in practice.

Any attempt to translate these thoughts into positive recommendations founders on deep cultural differences plus the knowledge that whilst the UK rules may be fit for their purpose, the practice has a long way to go. Do US lawyers and jurists bang on so much about ethics and keep each other in line with sanctions because they are more ethical than we are or less so? Do parties collect so much data because a) they really think that proportionate justice is to be found that way b) because the fear of being sanctioned has driven all reason out of litigation or c) because the lawyers and technology providers make a lot of money that way? Or is it just that the wheel is going round so fast – technology catching up with volumes and driving expectations – that no-one can stop it now?

And is it presumptuous of us from the UK to accept praise for our rules and for the proportionate spirit behind our rules, when so few UK judges take e-disclosure seriously, when parties in big UK cases can still assert that the disclosure of electronic documents is ipso facto disproportionate, and when we have just had to fight a long hard battle to persuade our Civil Procedure Rule Committee even to accept that the subject is worth raising?

Whilst the English say “electronic discovery is something Americans do, and look what a mess they make of it”, Americans say “England is two years behind the US”. Well, I for one will not disparage the US approach any more severely than they do for themselves, and if a two-year lag saves us from the worst excesses of US discovery, then can we have longer please? The reality is that we can both learn from each other.  The dream combination, perhaps, would be the rules of England & Wales managed by the array of US judges who were present at Georgetown. My view is obviously a partial one.

I will try and pick out the subjects which have most relevance across the jurisdictions, either because there are parallels, or because their absence is itself a matter of note.