I avoid lists, on the whole. Apart from the fact that one can sense the readers bleeding away, there is always the risk of omitting somebody or something, or of appearing to give an unintended priority to one thing rather than another.
Big conferences raise particular issues. There is no point in itemising every event – I might as well simply refer you to the published agenda. Perhaps I should refer only to those panels in which I am personally involved, but that seems a trifle egocentric. I might limit the selection to those companies with whom I have a personal or business connection, but that potentially omits reference to a major player on a significant subject. Is my role simply to promote those who are good enough to sponsor what I do, or does that undermine the objectivity which is, I hope, what keeps the readership and the Twitter followers rising?
Looking through the programme for IQPC’s Information Governance and eDisclosure Summit, taking place in London this week, I can reconcile these various conflicts by reliance on the fact that the sponsors of the eDisclosure Information Project are representative of the broader range of providers, and that the subjects which they cover give a correspondingly representative picture of what matters in a UK-centric picture of electronic disclosure. Read the rest of this entry »
Amongst the many interesting contributors to the IQPC Information Governance and eDisclosure Summit taking place in London from 14 to 16 May is Allison Stanton, Director of eDiscovery, FOIA and Records for the Civil Division of the US Department of Justice. She is taking part in a keynote panel about regulatory obligations, enforcement priorities and expectations along with Dean Gonsowski of Recommind and Keith Foggon of the Financial Conduct Authority (I don’t usually link to the web sites of government agencies, but this one is new and you might want to see what they do).
Allison Stanton is a reason on her own for attending this event, far and away the most interesting and lucid speaker on this subject from any regulator. She has been interviewed by Metropolitan Corporate Counsel, something I missed when it was published in February. Here is a link to their article DOJ Director Talks About Investigations and eDiscovery Technology.
The most interesting section in the interview is the one about costs, in which Allison Stanton makes it clear that whilst the DOJ’s primary driver is its “core mission to protect the American public”, it is willing to listen to companies who are able to explain “in nuts-and-bolts terms” the costs and burdens which they anticipate in complying with a regulatory demand. One would not mistake anything she says as implying that the DOJ will compromise on its core mission, but the invitation is there to open discussions around cost and burden. Read the rest of this entry »
Charles Christian’s Legal IT Insider has been hosting a discussion about the likely reaction of case managing judges to the proposed use of technology like predictive coding. The starting point is a thoughtful article by Drew Lewis, eDiscovery Counsel of Recommind called Best case scenario – the impact of the Jackson reforms, and Andrew Haslam, Jonathan Maas of Ernst & Young and I have joined in with comments.
However close becomes the alignment of the procedural rules in the US and in England and Wales, I suspect that we in the UK will never really get our heads round the US idea that one needs judicial blessing (from some court, somewhere) before doing anything new or different. We are not talking here of formal precedent, but of day-to-day case management of the kind which is rarely reported in England and Wales anyway.
The problem with phrases like “courts in the UK are currently not open to predictive coding”, apart from being wrong, is that they have the potential to stifle imaginative approaches to bringing costs within the bounds of proportionality. The courts are “open” to any suggestion which achieves this and one must jump on any assertion which might become a self-fulfilling prophecy.
The new rules are to some extent a clean sheet, and give opportunity for the right kind of lawyer and the right kind of judge to set the tone. The 1999 case management rules provided that the court could “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”. If the court can make any order, you can seek any order; if your suggestions point to the most proportionate approach of managing the case, then the court will not be inhibited by the absence of a case report approving of the method.
It is worth drawing attention to the point made by Jonathan Maas – your enthusiasm for agreeing timescales, as well as budgets, is no substitute for knowing what you are talking about. Vince Neicho of Allen & Overy emphasised at Epiq’s recent costs seminar that it is necessary for all interested parties (in the wider sense of the word “interested”, and including the client) to be involved in the discussions which go through into court-approved timetables.
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 lot of what I write suggests to law firms that their clients’ interests and, indeed, their own, may lie in delegating much of their eDiscovery / eDisclosure function to others. I usually link this to Professor Richard Susskind’s observation about how law firms must find ways of working which are quicker, cheaper, more efficient or to a higher quality “using different and new methods of working”.
Outsourcing, in its various guises, must be considered in this context, whether that be by using software which is hosted and managed by someone else or by taking advantage of the many (and competing) managed review services which can often perform this most expensive component of eDiscovery / eDisclosure to a quality and at a cost which few law firms can match.
I am careful always to make it clear that outsourcing is not the answer in every case, but is something which should be considered alongside purely internal solutions. As the UK moves towards costs budgeting and enforced proportionality, the ability to offer alternative ways of giving disclosure becomes more important. You do not need to be driven by the rules of any one jurisdiction to want to be able to offer clients and the court a range of options. Read the rest of this entry »
I am increasingly being asked to talk about predictive coding in the UK, and the subject warrants an article of its own. I will come to that shortly, but meanwhile point you to two articles published in the last few days which, although American in origin, serve as an introduction to those new to the subject.
Predictive coding is essentially a learning technology. What predictive coding is able to do is get input from a human being, who reviews samples of documents and marks them as relevant or not, and then those decisions are input into the predictive coding engine, which is able to generalize those decisions across the entire collection.
In other words, a relatively small amount of input at the beginning of the process is used to form provisional judgments about the rest, with obvious potential for saving time and money. The “learning” is continuous, in that the system refines its conclusions as the results are validated – and it is vital to appreciate that validation is a key component of predictive coding technology.
The article goes on to summarise the US case Global Aerospace, Inc., et al. v. Landow Aviation whose messages about the early reduction of volumes, and thence time and cost, are timely ones as the UK faces a new regime of court-led control and budgets. One of the points arising from the article is the absence of judicial guidance which, unsurprisingly, is the question I am asked most often when the subject comes up in the UK. Read the rest of this entry »
Here is a list of my blog posts of December 2012 on eDiscovery / eDisclosure and related matters. After several months of experiments, I have abandoned my Google Plus page for my short eDiscovery posts in favour of a second WordPress blog, called eDisclosure Information Project Updates. This blog has its own email sign-up for those who want to be tipped off about new posts.
Google Plus has really good SEO (Search Engine Optimisation), and the existing posts will remain there. Google’s clunky interface was one push factor; another was the feeling of being at a party which everyone else had skipped, despite the tiresome G+ focus on “community” and other things which Facebook does much better if you like that sort of thing – great for florists, car mechanics and High Street solicitors, but of no interest to me.
The new WordPress blog started delivering good SEO almost at once. I can extend its features, adjust its appearance and be sure that it will not acquire some tedious new “feature” next week because a hyperactive geek at Google has some syndrome which requires constant change for its own sake.
I have also abandoned the practice of summarising the short posts, giving a list like the one below instead. The SEO value of the summaries and the links from them was not commensurate with the very significant input which they required. I am not remotely interested in all the detailed “campaign” stats which marketing people get so hung up on. One thing matters to me – how many people go to my articles and thus past my sponsors’ logos? The average number of page views last year, weekends and holidays included, was 224 per day.
The list below, and the parallel one on my web site, are part of the web of cross-links (Twitter and LinkedIn provide the rest) which ensure that no-one can do much research on eDisclosure / eDiscovery without finding something by me.
December was a short month – I was away on holiday for a week quite apart from the long Christmas and New Year break. The volume of interesting material now being published by others is such that there is always a queue – that is, a stockpile of subjects, some already written about, which I hold back to avoid swamping the readers. Apart from time-critical things like webinar dates, I don’t think promptness matters too much – if it is important, it will still be important next week. Read the rest of this entry »
The Delaware Hooters case promotes not just predictive coding specifically but the idea that lawyers must consider all appropriate tools and techniques to reduce the burden of eDiscovery / eDisclosure. That approach will be required in Engalnd and Wales by April 2013, if it is not in fact required already.
An article called Orange hot pants and predictive coding – a match made in Delaware by Recommind’sDrew Lewis sent me scuttling back to my own article about Vice Chancellor J Travis Laster’s conclusion in “the Hooters case”. Was I one of those who used the expression “judicial activism” in the derogatory sense criticised in Recommind’s article, and was I also one of the “respected industry fixtures” who “jumped on the Chancellor and decried this activism as a harbinger of things to come”?
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.
Here is a summary of the (relatively few) eDiscovery updates posted on my Google Plus page between 14 and 20 October.
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Xerox adds streamlined redaction to its upgraded Omnix 5.4 discovery platform
The headline feature in the new release of the Xerox XLS discovery platform Omnix is a redactions tool which allows redactions to be applied automatically, together with reasons for the redaction, to specific terms in documents based on search results and advanced text pattern hits. The new tool also allows reverse redactions, that is, the blanking out of anything in a document which does not meet certain criteria. [More]
Going it alone: Millnet comment on Drinker Biddle’s in-house discovery function
I wrote recently about the subsidiary company set up by Chicago firm Drinker Biddle to manage the eDiscovery function for the firm’s litigation clients. This development was said by the firm to be a reaction to the high costs of involving external providers of eDiscovery services. I described this reaction as a conventional market development, a way of fighting back as others encroach on your traditional territory. [More]
A Very Gallant Gentleman – Captain Oates walks out into the snow
The article Going it alone, by Millnet’s Charles Holloway, mentioned below, includes a part of the painting called A Very Gallant Gentleman painted in 1913 by John Charles Dolman. It depicts Lawrence Oates, a member of Scott’s ill-fated 1912 Antarctic expedition, going out into the snow to die alone because his ill-health was slowing the others down. His last words, “I am just going outside and may be some time”, are taken as the epitome of self-sacrificing courage, causing Scott to write that Oates “died a very gallant gentleman”. [More]
Nuix and RSD partnership aims to bring data in from the cold
eDiscovery and Information Governance software company Nuix has joined forces with Geneva-based RSD to help organisations identify and tag documents and data which lie outside the formal document repositories. Once found, documents can be brought in from the cold, left where they are or deleted according to the policies in force in the company.
The partnership involves the incorporation of the Nuix search and analysis technology into the RSD GLASS 3 platform.
Recommind: The ROI of Predictive Coding – Thursday, 18 October
This webinar discusses the cost savings and the quality improvements associated with Predictive Coding. It is obviously good to be able to assess in advance what the return will be on the investment in any technology. Two things are needed to begin – some metrics from past cases in order to see what the typical cost is, and some idea of the percentage reduction which might be achieved using the proposed technology. Given the cost of review, you do not need a very high percentage reduction to pay for the use of the technology. [More]
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.
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. Read the rest of this entry »
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.
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. Read the rest of this entry »
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.
The introduction of new technology quite often spawns myths. My long-time favourite practitioner is Dr Dionysius Lardner who constantly challenged the work of railway inventor Isambard Kingdom Brunel, asserting, amongst other things, that passengers on Brunel’s Great Western Railway would suffocate if the train’s brakes failed on a downhill slope and that a voyage from New York to Liverpool “was perfectly chimerical, and they might as well talk of making the voyage from New York to the moon”. The first of these assertions ignored wind resistance and friction and the second failed on the technical ground that “the carrying capacity of a ship increases as the cube of its dimensions, whilst the water-resistance only increases as the square of its dimensions”.
The point of the parallels is that a myth which was potentially damaging to progress was a) answered by science and b) proved wrong by experience when the railway passengers survived and the SS Great Western steamed into New York harbour with 200 tons of coal to spare. Read the rest of this entry »
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.
“The move” in my article’s title maybe taken to refer to the advances in the take-up of predictive coding in the last few months. In fact it is me who is moving– I am on a California road trip with my wife and, inevitably, not catching every development on predictive coding or anything else.
Three stories have caught my eye, however, from Twitter, in the relatively few periods when I have access to an Internet connection.
One is Recommind’s appointment of Hudson Legal as a certified predictive coding provider, combining Recommind’s technology for early case assessment, predictive analytics and predictive coding solutions with Hudson Legal’s project management, review logistics and document review teams. This is a formidable, and wholly logical, pairing.
The second story also involves Recommind, being a report by Monica Bay of Legal Technology News of a discussion called Debunking Myths about Predictive Coding. This was presented by ALM and involved Howard Sklar of Recommind and David Kessler of Fulbright & Jaworski, two of the ablest proponents of the use of technology generally and predictive coding specifically. Monica Bay is one of the more concise writers on these subjects and I simply refer you to her account Panel Debunks Predictive Coding Myths without any attempt at summary on my part (I’m allowed this kind of cop-out when I am on holiday).
The third story is about OrcaTec, another respected provider of predictive coding software. This has not been widely reported (I got it from a story headed Predictive coding finds ‘smoking gun’ on Charles Christian’s Orange Rag, that universal bran-tub of legal technology intelligence)
It concerns a focused use of OrcaTec’s technology to find one or two key documents which, once discovered, allowed the lawyers to settle the case with a couple of phone calls. This seems a rather more useful purpose for the technology than merely collecting together thousands of documents which no one is ever going to read but which make the lawyers feel good (in their pockets as well as in their consciences).
I see that OrcaTec has attracted a substantial investment. I think that if I had money to invest, I would be putting it into eDiscovery technology providers rather than law firms at the moment.
Fate is usually kind enough to give me spaces between the big events and time enough to write them up before the next one. Fate has not been so kind this week: with two major events yet unreported (Hong Kong and the Nuix Information Governance Forum in Palm Beach), I have had to spend more time in London in a week than I usually do in a month. A single meeting involves a at least five or six hour round-trip, and having to go up most days leaves little time for writing.
All good stuff though, and I would not miss any of it. On Wednesday, Epiq Systems hosted a panel discussion on judicial attitudes to technology-assisted review. The panel comprised (from left in the picture below) Senior Master Whitaker, Bob Lewis from Barclays Bank, US Magistrate Judge Andrew Peck, and barrister Shantanu Majumdar. Much was said which is worth recording here, as you would expect from a panel of this calibre, and I will come back to it shortly.
I had to scuttle back from that to record a webinar with Andrew Sieja and Nick Robertson of kCura, again on computer-assisted review. Between us all we will get across the idea that predictive coding is not the “black box” of popular escapist fiction (“escapist” implying the lawyers’ curious wish to find any excuse to duck the realities of document review costs).
Today, amongst other things, I have been to Recommind’s splendid party at TOTG – Top of the Gherkin, the London equivalent of Recommind’s Top of the Rock parties which have become a fixture at LegalTech. Read the rest of this entry »
Recommind has published a video in which I interview Senior Master Whitaker and Computers & Law has published a related article which I wrote to accompany the video.
I try and keep a rough balance in these pages between subjects and between providers of eDiscovery / eDisclosure software and services. By “rough”, I mean that I sometimes let a subject sit for a few days so as to give you a balanced diet. I cannot help it, however, if one supplier publishes a predictive coding paper of mine at the same time as another releases a video which I made with them – both were done some time ago and I do not control publication dates. Every subject which I cover – information governance, cross-border discovery, EU data protection, social media, UK procedural rules, Hong Kong and Singapore, and discovery market acquisitions are all claiming equal attention at the moment and it seems better to grab subjects as they fly by rather than to agonise over priorities.
What attitude will the UK courts take to the use of advanced software like predictive coding? The question comes up because the US eDiscovery world is in a fever over judicial acceptability of predictive coding, seemingly unwilling to use any software which has not been pronounced “defensible” by some judge. This mystifies the rest of us somewhat, not least because most UK case-managing judges couldn’t accurately distinguish between predictive coding and Pac-Man, but would speedily get their minds round it if it and its application to the case in front of them was explained clearly and in terms of proportionality. The fact that some other judge made a decision in an entirely different case is irrelevant in a jurisdiction which prizes judicial discretion above everything.
Well, the US now have their judicial endorsement in the form of US Magistrate Judge Andrew Peck’s Opinion in Da Silva Moore v Publicis Groupe and MSL Group. Judge Peck was at pains to emphasise both that the actual software used was not relevant to his decision (it was in fact Recommind’s Axcelerate) and that the processes agreed between the lawyers were more important than the choice of application. That is not to say that all predictive coding applications are of equal quality – far from it – but no one will argue with Recommind’s claim to be amongst the market leaders.
In the video, I ask Senior Master Whitaker – one judge who can definitely distinguish between predictive coding and other things – for his view on the likely attitude of UK courts to predictive coding and other sophisticated technologies. As always, Master Whitaker manages to be both uncompromising and balanced in his answers.
The video is short and I will leave you to watch it without further explanation. I’m not quite sure why I have come out looking as if I am reclining in a dentist’s chair – it felt upright at the time. In any event, it is the words which matter, and Master Whitaker’s more than mine.
To accompany the video, I have written an article for Computers and Law called Predictive Coding = Proportionality. The focus in that, and in the interview, is on proportionality and on the duty of lawyers to argue on an informed basis for whatever approach they think is right. I also take the opportunity to challenge the most commonly-heard misconceptions about the use of technology of this kind.
This is a continuation of a series of roughly chronological mini-posts following my recent visit to Hong Kong.
And so to the conference itself, in two rooms overlooking the water. Many events like this take place in gloomy basements, and the whole thing feels different with daylight and a view.
Recommind’sCraig Carpenter and Barry Murphy of eDJ Group kicked us off with a dialogue which took as its theme the relationship between eDiscovery, information governance and forensic investigation.
Craig’s opening slide showed a motor car pulled by a horse. This could have been seen as symbolic of a number of things; I took it to mean that the power of modern technology was being used at the speed of an older generation of motive power, probably a lawyer. Craig’s accompanying message, however, was that technology advances mean that lawyers are more important, not less. Read the rest of this entry »
If you want a rounded account of IQPC’s successful Information Governance and eDisclosure Summit in London this week, this is not the place to find it. I was involved in five events over the three days and spent most of the rest of the time talking to providers, judges, lawyers and in-house eDisclosure people from law firms and their clients, attending very few sessions as a result.
The nearest you will get to a narrative account can be found by looking for the #infoGovSummit hashtag on Twitter and particularly the tweets of Recommind @Recommind, Barclays’ Matt Ward @_Matthew_Ward_, and the ever-reliable Andrew Haslam @AndrewHaslam (winner of the event’s tweeting prize).
FTI Technology Panel
It began for me with a workshop led by Craig Earnshaw of FTI Technology at 8:30am on Monday morning. Our subject was When Volumes get Large: How to Keep Control of Your eDisclosure, which was kicked off with talks from Glen Greenland and Ian Smith of FTI and then taken up by a panel comprising Matthew Davis of Hogan Lovells, Jean-Bernard Schmid of the Geneva Public Prosecutor’s Office and me. No eDiscovery exercise, whether for civil litigation, or for an investigation for regulatory, criminal or internal purposes, ever ends up smaller than anticipated. What resources, of people and technology, do you bring to bear in a way which remains proportionate whilst scaling up to meet new developments? The subject was deliberately broad, and swept up a range of challenges from pure volume to time constraints to privacy and all the other wrinkles which are recurring features of exercises which are increasingly global in nature.
The most memorable moment had nothing to do with the primary subject – or perhaps it did. Craig Earnshaw asked for the most extreme example of geographical remoteness encountered by the panel. No-one sought to compete with Matt Davis’s reference to Hogan Lovells’ office in Outer Mongolia, neatly emphasising that there are no geographical limits any more.
Dinner with Nuix
A dinner hosted by Nuix on Monday night gave me another example of projects which turn out bigger than anticipated, as well as an object-lesson in the value of actually reading one’s e-mails. Read the rest of this entry »
Australia, New Zealand and Hong Kong only look close together when viewed from a long way away. They all have a common law eDiscovery tradition, but it is coincidence of timing rather than any specific commonality which groups them together in this post. A group of articles has bunched together in the electronic equivalent of my in-tray (Evernote, since you ask) and it is convenient to pick them off together.
The subject headings cover the full range of current talking-points. The unambiguously named Predictive coding: what is it and how could it change the practice of law in Australia clearly aims to give this subject its due. Michelle Mahoney knows more than most on on How to best manage outsourcing eDiscovery and hosting. Browning Marean is always lucid on legal holds. Add Nuix on Integrating legal technology into your organisation and you conclude that Chilli IQ are not stinting on quality speakers. Read the rest of this entry »
If you are not yet familiar with the plaintiffs’ arguments about predictive coding (I use the word “about” in its broadest sense, since much of the argument appears to be about some completely different agenda) in Da Silva Moore v. Publicis Groupe & MSL Group, Rob Robinson has helpfully gathered together the formal documents in one place.
In my 7 March article Judge Peck’s Predictive Coding Opinion – Reporting the Reaction, I picked out points made by various of the better-known commentators on the then state of play in the Da Silva Moore Predictive Coding dispute. I ended that article by saying “I can think of two or three commentators, so far silent, whose views will be worth having.” Today brings us the expected article from Herb Roitblat, CTO and Chief Scientist for OrcaTec, one of those whose opinion I had in mind.
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:
It needed no great prescience to anticipate a flood of articles about US Magistrate Judge Andrew Peck’s opinion in the Da Silva Moore predictive coding case (Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. February 24, 2012). I made an early election to stand back before writing about it, reckoning that I do you better service by pointing to the best of the early reactions and then taking a broader approach myself, not least in jurisdictional terms. I may challenge from time to time the idea that the US is in any sense “ahead” of the rest of us in terms of rules and processes, but there is no challenge to the suggestion that new technology gets its most exacting trials in the fire of the Federal Rules of Civil Procedure, and other jurisdictions can observe and learn.
In what is, I think, the only UK article thus far apart from mine, Charles Holloway of Millnet reckons, in an article headed In the jaws of ediscovery, that an English judge would take the same view as a US judge in similar circumstances. There are judges and judges of course, on both sides of the Atlantic, but I think Charles is right. Millnet know whereof they speak in this regard, having been involved in the only UK predictive coding case whose outcome has been written up publicly – see my article Two predictive coding case studies emphasise time and cost savings, which involves a US case involving Epiq Systems well as Millnet’s UK one.
The present article points to some (by no means all) of the commentary which has appeared already, allowing me to go on to take a slightly different approach in my separate article.
The best plots are those which can be summarised in a few words. “Father murdered, uncle bad, Ophelia hot, Hamlet mad, all dead” tells you all you need to know about Shakespeare’s most famous play. The equivalent in respect of Judge Peck’s opinion came from Warwick Sharp of Equivio who quickly boiled the whole thing down to this: Read the rest of this entry »
Perhaps the only person who will understand my heading instantly is the judge whose Opinion in Da Silva Moore v Publicis Groupe is at the centre of eDiscovery attention this week. US Magistrate Judge Andrew Peck is as much an authority on Sherlock Holmes as he is on the use of technology in litigation, and will recognise the story of the eponymous horse and the strangely silent canine.
Well, that’s broken the first two rules of good web writing – follow an obscure heading with an opening paragraph which takes the reader yet further away from comprehension. What is the connection between horses, dogs and fictional detectives, on the one hand, and an important electronic discovery Opinion on the other?
Silver Blaze is a race-winning horse of whom are great things were expected. He disappears on the eve of a big race and his trainer is found dead. The following dialogue takes place between Holmes and the detective, Gregory:
Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”
On Friday afternoon, Judge Peck issued an Opinion and Order in the Da Silva Moore case in which he said “This judicial opinion now recognises that computer assisted review is an acceptable way to search relevant ESI in appropriate cases.” You will hurry, no doubt, to see what Recommind, the most vociferous proponent of predictive coding, has to say; this Opinion is important to them as it is to anyone else with an interest in reducing the costs of eDiscovery, and they are one of the more voluble users of social media to get their messages out. Nothing.
You know, perhaps, that Ralph Losey always writes on a Sunday; he wouldn’t miss an opportunity to write up an Opinion like this, would he? You find instead an article called Picking Battles and Knowing When Not to Speak; it has an animated version of Ralph, dressed in pigeon-fancier’s flat hat, braces and (apparently) nothing else, describing himself as a “happy guinea pig”, followed by a few worthy quotations and links. What is going on? Read the rest of this entry »
It is barely a fortnight since I reported on Recommind‘s coup in appointing Nick Patience as Director of Product Marketing and Strategy. Since then, Recommind’s name has turned up more often than I can keep pace with. I put it that way because I try to leave space between multiple references to the same provider, which becomes difficult when a lot of separate stories emerge at once. Only one of the stories, a product announcement, is LegalTech-specific; the rest seem just to have happened along at the same time.
If I group them together now, that will this leave space for whatever comes along after LegalTech.
Axcelerate eDiscovery 4.3
The fact that Recommind is amongst the leaders (in time terms as well as in reputation) in the technology known as predictive coding, may obscure the fact that its roots are in broader information management software and that the predictive coding component is but a part of its overall eDiscovery offering. The technology originally developed for broader search and categorisation has two eDiscovery components, Axcelerate ECA and Collection and Axcelerate Review and Analysis, which between them perform the functions implicit in their names. Axcelerate On-Demand extends the same capabilities into the cloud and, as again its name implies, is available without in-house installation – like tomorrow, if you need it.
Axcelerate eDiscovery 4.3 introduces new seamless management capabilities across the entire process. The press release quotes Woods Abbott, Senior Manager of Legal Operation / eDiscovery at Raytheon, as praising not just the processing and workflow capability but, crucially, the sampling tools which are a big part of the battle to convince lawyers that they retain control of the decision-making. Read the rest of this entry »
I have just written an article which, amongst other things, referred to the difficulty which eDiscovery / eDisclosure providers face in recruiting appropriately skilled and experienced talent for what is, for many of them, a market which grows almost weekly. There was nothing deeply perceptive in my observation that their only options are to recruit from rivals in the same business or to induce talented people to cross over from another industry sector.
There are no limits as to where good people might come from, although an ex-civil servant might perhaps find the hours, the urgency and the need to make judgements rather daunting. A good brain, agility of thought, a focus on real objectives and the ability to get on with others are the prime qualifications, although knowledge and experience of the industry is an obvious asset.
Looking at my headline for this article, I see that its necessary brevity includes two implied assumptions, neither of which is necessarily accurate. The “as” which connects the two halves of the headline (“Nuix snaps up… as 7Safe falls”) implies that one of the two events (and it could be either) was a consequence of the other, whereas this could be a coincidence (a similar point arose when Jack Halprin moved from Autonomy to Google seconds before the HP-Autonomy acquisition was announced). The shorthand expression “falls to” implies reluctance (the expression properly belongs in the world of hostile bids), whereas this may, for all I know, be the culmination of a long term strategy.
It is only when you come to write headlines that you see how boxed-in you are by the need both to catch the eye and to maximise the power of Google’s indexes. A completely different impression could have been given by reversing the order of the words – “PA consulting snaps up 7Safe as Jim Kent falls to Nuix as MD Europe” would give a completely different emphasis.
Back to the stories. Nuix is a fast-growing provider of eDiscovery, electronic investigation and information governance software. It has the same problem as every other major player in the eDiscovery / eDisclosure market – there are not enough good people out there with the appropriate skills to give clients the support and advice that they need. There is not time for them to grow their own and, in any event, the grey hairs of experience are in shortest supply. They can be found only by recruiting from rivals or from other sectors. Read the rest of this entry »
I bring a fairly jaundiced eye to some of the marketing by those who sell technology solutions to lawyers. This is not so much to do with the quality of the marketing materials themselves but more to do with their approach to the psychology of those to whom the marketing is addressed. To some extent, a mismatch is unavoidable: the technology pitch is that it saves lawyer time, and lawyers live by selling time; much of eDiscovery validation depends on statistics and probability, and lawyers are largely arts graduates; there is good reason for fear, uncertainty and doubt in the management of discovery and it is unsurprising that providers trade on this as part of their pitch, often at the expense of more positive messages.
Deeper fears are touched by the implication that technology can do certain tasks better than humans can do them. It comes across as a threat to jobs at a time when many lawyers are out of work already; it appears to mock the years of expensive learning and the large qualification debts; it seems to threaten the central role which lawyers have traditionally had in the litigation process as functions are increasingly delegated to what is seen as a black box, and are challenged by new business models. There is something in all of this, and the New York Times article of March last year Armies of expensive lawyers, replaced by cheaper software, stoked fears which certainly had some substance. Read the rest of this entry »
Take a look at Wilmer Hale’s eDiscovery Solutions website. When I first saw it I put up a tweet to the effect that any litigation law firm not doing something like this would be dead within two years.
The website sets out succinctly (in five bullet points) what methodology Wilmer Hale uses on behalf of its clients and what the benefits are. More importantly – very much more importantly in some ways – it sets out the pricing for different types of case and situation. It includes a case study involving the use of Recommind’s Axcelerate which describes what was done and what was saved in terms of the defensible reduction of reviewable documents. Lastly, it introduces readers to the (very large) team who comprise and lead eDiscovery exercises.
There are a handful of other firms who can compete with Wilmer Hale for their commitment to a properly structured, properly equipped and properly staffed team. None of them, however good, matches the clarity with which Wilmer Hale describes what it does for its clients. Other firms may care to put themselves in the position of clients who, increasingly, are able to take much of this work in-house and / or outsource it to providers and document review companies without troubling the lawyers too much. The only possible law firm reaction to this is to deprive clients of the incentive by offering a set of services in the way that Wilmer Hale has done.
In writing about the US case Pippins v KPMG (see KPMG Judge Kicks the Sisyphean Stone of Proportionality Back Down the Hill) I made a point of emphasising that “one must… be careful up to a point in commenting adversely on rules of another jurisdiction”. I also made it clear that my comments were not directed at the judge but at the rules as they have developed.
Mine was therefore a policy view rather than a taking of sides, a conclusion that if the Magistrate Judge was correct (as to which I have no informed view) then my outsider’s opinion of the legal context was that, as Dickens’ Mr Bumble put it, the law is an ass. My support for the position taken by the amici who have joined in the appeal was based more on sympathy with their broad propositions than with the facts of the case. I want them to to be right and to win because I entirely buy the idea that decisions like this will cause lawyers “in an over-abundance of caution [to] feel obligated to follow the broader standard preservation adopted by any court” as one of the briefs puts it.
As one might expect, the case has aroused strong views, none clearer than those expressed by Craig Ball in a forthright article called A Good Decision Brings Out the Bullies – a title which tells you which side Craig takes. His analysis takes the key facts, a less-than-complimentary examination of KPMG’s actions, the reasons in forensics and evidence terms why the hard drives which were the subject of the application ought to be preserved, and a sprinkling of references to the rules.
The briefest recital of the facts, for those who are starting here, is that a claim has been brought against KPMG by current and former associates who say they were deprived of overtime payments. KPMG chose to collect 2,500 hard drives used by potential claimants. This, they now say, is costing them significant sums and puts them at risk that the data thus preserved will become subject to legal holds in other cases. Read the rest of this entry »
My article drew parallels between attitudes to general public risk and attitudes to eDiscovery in the UK and in the US. If Howard thought that I “woke up on the wrong side of the bed” on the morning that I wrote that article, what will he say about my even harsher and more specific article of Sunday about Strathclyde’s Fire and rescue service, whose officers allowed a woman to die because of what the Sheriff considered “fundamentalist adherence” to health and safety policies? The Sheriff’s Determination includes the same phrase as appeared in my article’s title about attempts to “eliminate risk”, and with much the same contempt.
I point you to Howard’s article mainly because of one sentence in it. Howard says:
It is here that Chris is absolutely right when he says that the UK rules are too permissive.
That statement really needs the addition of “when viewed through US eyes”, because I did not actually say that I believe the UK rules to be too permissive. What Howard says thereafter is the corollary to my view of the US system – he says that “the idea that there is no concept of legal hold [in the UK] flabbergasts US lawyers”. Flabber away, I say. It is not that we forgive the destruction of documents. My observation on the US system was that it has become “obsessed to the point of catatonia with eDiscovery risk”, with massive over-collection caused by a fear of sanctions which is not warranted by any sensible interpretation of the many cases on the subject.
I don’t mind, really, at least down to the point when US courts try and impose the same standards on the rest of us in cross-border eDiscovery – we just want to get on and have the matter resolved without expensive diversions which often seem to have no bearing on the issues being litigated. Deliberate conduct aimed at thwarting justice is punished here as well, as Rybak v Langbar International shows.
So what did I say which has been interpreted as a concession that “the UK rules are too permissive”? I made two references to UK disclosure. The first was:
The US in turn thinks that the UK approach to eDiscovery – to spoliation, the preservation and legal hold, and to the completeness of discovery – aims at a laughably low standard compared with the stringent requirements of US discovery.
That is a report, not a view, and certainly not my view. There is much to complain of in the way UK courts and lawyers manage eDiscovery, and the rules themselves have scope for improvement, but you won’t catch me knocking the standard set by the UK rules and cases. I don’t claim that the process is perfect, but I will stick with it in the face of any threat that we might go the American way.
My second reference to UK eDisclosure was this::
It is probable that UK eDisclosure questions will be scrutinised sooner than has been the case hitherto, but the context will, I hope, be judge-led initiatives to weigh cost against scope rather than mere alleged failure to comply with formal requirements.
So yes, I am urging closer attention to the scope of eDisclosure in the UK, but am aiming for narrower and more proportionate disclosure as a result, not an aspiration towards US legal hold standards. If UK judges are too “permissive”, it is because they too often permit excessive disclosure, not because they condone inadequacy.
If one has to choose between the risk that documents may sometimes be missing for whatever reason and the risk of US-style preservation and legal hold battles, I will risk the occasional oversight. The law as set out in Rybak is all the comfort I need that misconduct will not go unpunished.
What Howard and I are illustrating here is something I say when speaking to audiences in mainland Europe – a line in one of my slides reads “Each finds the other’s position literally incomprehensible”. Philip Favro of Symantec has also made observations on things I have said about UK-US differences. I will come to them shortly.
I was not sorry when my plane’s wheels touched down at Heathrow on my return from IQPC’s Information Retention and eDiscovery Exchange in Munich on Wednesday night, bringing to an end 28,000 miles of eDiscovery travel in six weeks. A few hours later, I was on my way to London to talk to a law firm about the UK eDisclosure Practice Direction in the company of Nigel Murray of Huron Legal – the e-Disclosure Information Project back on home turf. Meanwhile, US Magistrate Judge David Waxse, Judge Herbert Dixon and Jason Baron were all on their way from Munich to Washington for the Georgetown Advanced eDiscovery Institute. Within hours of my saying goodbye to Judge Waxse in Munich, tweets started rolling up my screen reporting on his contributions to a judicial panel at Georgetown.
The Problems and the Players
E-Discovery touches a lot of corners. It has multiple players: there are the companies whose data must be found and produced for court proceedings, for a regulatory investigation or for internal purposes, and within the companies are multiple duties and responsibilities which are not necessarily aligned. We have the lawyers who advise them, all too often reactively rather than in anticipation of problems. There are the judges and regulators who manage proceedings and who have an interest in efficient and proportionate outcomes. Lastly, there are the suppliers whose technology and consultancy helps address the problems. eDiscovery has many facets – an ever-wider range of data sources and types, matters of budget and reputation, and overlays of privacy and HR; the issues arise in very similar form in many different jurisdictions.
Conferences like IQPC’s Munich event provide an opportunity for all these people to discuss the problems and the solutions in the sessions, in prearranged one-to-one meetings and in less formal gatherings in bars and restaurants. One must pay a particular tribute to the two US judges mentioned above, Judge Waxse and Judge Dixon, and to the UK’s HHJ Simon Brown QC, all of whom emphasised that they came to learn as well as to speak about the issues which face court users.
Welcome to Munich
IQPC’s European events seem to get more than their fair share of external complications. Two years ago, the ash cloud prevented the attendance of several delegates, speakers and sponsors in Brussels; last year we were nearly snowed in in Munich; this year fog caused delays and, for some, re-routing via Stuttgart. Most of us got there in the end. The venue was the Kempinski Hotel Airport Munich, a short walk from the terminals, and nothing at all like the picture which the dread words “airport hotel” usually imply. It is a stylish place, with a big attractive bedrooms, good food, a convenient set of conference rooms and a bar which seemed to have no closing time.
I inevitably come across the occasional minor problem on my travels – screaming brats on planes, setting off without my passport, losing my luggage, or not being able to find a decent cup of coffee or somewhere to smoke. This is the first time, however, that I have heard the receptionist say “We have no booking in that name”, followed by “…and we have a big conference going on” (to get the full flavour of this, you need to imagine that it is very late at night, with cold fog swirling around what may be the only accommodation for miles). Fortunately, they found me a room. The coolness of my reception was washed away by the fact that the bar was full of the agreeable people whom one meets at many conferences. Read the rest of this entry »
For practical purposes, there is no difference. The long-established process of “Discovery” was renamed “Disclosure” in 1999 for reasons which made no sense at the time beyond the optimistic notion, endemic at the time, that you could improve something by changing its name. The alleged benefit, the shift of focus to what you gave to the other side, was meaningless then and has become more so as the emphasis has moved, under pressure from the volumes, to the scope of search. The terminology change also failed to anticipate that this would become a subject which crossed borders both intellectually and practically, leaving England & Wales with a confusingly different term for the same process. There is quite enough to misunderstand without frigging around with the established terminology.
My own approach, for what it is worth, is that if one is referring to the Rules themselves then one should use the terminology of the Rules but that the term “Discovery” is the proper one for the process. In practice, I generally do what I have done in my opening paragraph and use them both.
The opening article is an interview with Jonathan Maas, rightly described as “a bit of a legend” in litigation support. Jonathan was already well-known in the nascent field when I began, and that is going back a bit. You do not need me to paraphrase the article for you, but the main point, to my eye, lies in the sentences “[Lawyers] don’t need to know how to do it, just that it needs to be done.” and “law firms need to know these things can be done, to know the benefits and to be able to stand tall with their decisions…”. You cannot “stand tall” if you do not understand what you are talking about. Read the rest of this entry »
Electronic discovery company Applied Discovery and KPMG are amongst those who have recently partnered with Equivio to integrate Equivio>Relevance into their existing eDiscovery applications. These two recent announcements give me an opportunity to return to the subject of software-assisted document review using what is generally known (but see below) as predictive coding. Recent discussions with some lawyers have shown scope for fundamental misunderstandings about what this kind of software does, and a look at the explanations produced by Applied Discovery and KPMG, as well as those of some other players in this space, may help.
My primary objective is clarity for those who come across the names and the terminology but are not necessarily clear as to the functionality being offered or its purpose. There seem to be three aspects which some lawyers find difficult about this kind of software, each of which is worth challenging. These are the following:
They think it is being sold as a substitute for human review of the documents which are to be disclosed. That is not its purpose. It provides (amongst other benefits) a means of identifying irrelevant (or less relevant) documents or, to put it the other way round, a way of prioritising documents so that those identified provisionally by the software as the most relevant or most important are brought to the top. The important word here is “provisionally”, with its clear implication that the lawyers get every opportunity to double-check both what has been ranked as important and what has not.
It is the subject of debate about judicial acceptability which, again, follows from a misunderstanding both of what it does and of what the courts expect. You may care to read an article called Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat which reports on what I describe as “one of the clearest statements yet by a judge that the use of new technology like predictive coding is an acceptable way to conduct search”. Judge Peck’s immediate context may have been the US Federal Rules of Civil Procedure, but the principles which he covers apply anywhere, and the UK’s Senior Master Whitaker has said much the same both in conference speeches and in his judgment in Goodale v Ministry of Justice. Master Whitaker has also emphasised repeatedly the first point made above – that none of this software is intended as a substitute for human review of documents to be disclosed; he has heard this reaction as well.
There is a paradox inherent in the nature of lawyers. They crave certainty but prefer it expressed in words rather than in numbers (a point which comes up in my recent report about the risk management function of corporate counsel). The statistics-based evidence of an application’s accuracy may underpin a decision to use this type of software, but lawyers still prefer the evidence of their own eyes. In fact, the applications give every opportunity for output to be validated by humans, but (in a second paradox) this may be getting lost in the marketing literature’s emphasis on the science.
The second of these points, judicial acceptability, is adequately covered in my Judge Peck article. In this article, I will focus on the lawyers’ own confidence in these applications as an aid to lawyerly judgement, not a substitute for it. To do that, I will look at the descriptions of what these applications do rather than on the science behind them, supporting the relevant parts of the Applied Discovery and KPMG materials and by extracts from those of other products with similar functionality.
First, however, it is worth saying a few words about terminology, not so much to define the labels as to pick the generic purpose out from the proprietary or product-specific names given to this kind of functionality. They all work slightly differently, and I defeat my object of simplicity if I qualify my deliberately broad descriptions with any attempt to describe the distinguishing features of each of them. Read the rest of this entry »
This post collects together a few articles which appeared at about the same time as Tim Bratton’s talk Should Corporate Counsel Use Social Media? at the Legal Week Corporate Counsel Forum Europe last week. These articles cover the marketing, the practical and the risk-related aspects of using social media, and they expand on some of the points made in the talk, going beyond the use by corporate counsel and into other areas to which they should be alert.
A more formal analysis of the benefits of using social media appears in an article called Not Your Marketer’s Social Media:Ten Ways Lawyers Can Benefit from Non-Marketing Uses of Social Media by Dennis Kennedy and Tom Mighell. The article identifies a number of reasons apart from marketing why one should use these forms of communication, concluding that they all contribute to marketing whatever their primary driver. The word “social” implies involvement and usually (but not necessarily) interaction. Delegation away from those with a genuine interest in the company’s products and its market (which may, of course, include marketing departments) loses that driver.
The downsides include potential damage to reputation – see this article about a tweeting initiative by the Guardian on the 10th anniversary of 9/11 which was pulled very quickly in a hail of protest. This example is particularly interesting because, as the author notes, it is not necessarily easy at first to see what is wrong with what the Guardian was doing. There was no ill-intent here, nor (one assumes) a solo frolic by an unauthorised junior, just an idea which fell flat. There is a danger, in our over-cautious times, that misjudgements like this are seized on by opponents of new media to damn the whole idea, or to hedge future uses around with so many constraints that they lose the immediacy which gives them value.
Downsides come in other forms, including the discovery risks highlighted in an article called Social Media: the Next eDiscovery Elephant in the Corner by Johannes Scholtes of ZyLAB. The discovery / disclosure problems come in all shapes and sizes, not least the pure volume revealed by the statistics which Johannes Scholtes sets out. Employment issues, evidence unwittingly revealed, modifications to our expectations of privacy – these are all traditional discovery matters given alarming new life by the extent of social media use. Read the rest of this entry »
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. Read the rest of this entry »
I am back from the annual conference of ILTA, the International Litigation Technology Association, in Nashville, Tennessee. The original draft of this post said that I was “just back” but (as more than one correspondent has reminded me) time has gone by without any post from me about it or about anything else. Catching up after two back-to-back conferences in opposite corners of the world plus an ever-busier Twitter stream and a few other things have kept me amused. I will in due course do a couple of posts about the serious stuff at ILTA and I will point you to summaries by others of the product and company news which, however interesting and important, can be dealt with from my desk if it still seems interesting or important by the time I get to it.
Despite the best efforts of the PR people, I don’t cross the world to shut myself up in dark demo rooms or to hit the social scene. The breathless prose of the press releases offers little incentive; I don’t drink much, don’t party more than formal politeness requires, don’t really appreciate most corporate nights out unless they involve a table and a decent menu, and can’t stand shouting above noise. Why do I go each year?, someone asked.
As I have said in an earlier article, I had some formal reasons for going – I sat on a panel for Thomson Reuters and moderated a video session for Digital Reef. The real value, however, lies in ad hoc and informal conversations. Within a few hours of arriving, for example, I had lunch with Amir Milo and Warwick Sharp of Equivio, a conversation with Herb Roitblat of OrcaTec, and an extended early-morning coffee with Howard Sklar of Recommind; those who followed the predictive coding furore of a few weeks ago will note that these companies were in the front line trenches of that energetic debate. I could, in theory at least, ring up any of them for a chat at any time but it is only at ILTA that there is an opportunity for these impromptu discussions.
So what?, you say. You bumped into all your mates and had a nice chat. How pleasant to be able to do that in a grand hotel somewhere hot and call it “work”. Well, it is enjoyable, but it has a serious purpose as well. This post is largely anecdotal and aimed at giving the flavour of the event in the hope of encouraging you to go next year.
Carrying messages
The advertised pitch for the eDisclosure Information Project is that I carry news and views about eDisclosure / eDiscovery between judges, lawyers, clients and those who supply into the market. Some of that is done by sitting on panels, taking part in webinars and other one-to-many exercises; sometimes it involves reporting things which deserve a wider audience such as Judge Peck’s speech at Carmel and those of Singapore’s Chief Justice, of Lord Justice Jackson, and of Senior Master Whitaker at the recent conference in Singapore. Sometimes, however, it lies in one-to-one conversations which you can’t have if you just sit at home writing blog posts.
Talking to Equivio’sWarwick Sharp is like standing beside an expert at a pheasant shoot. Up go the arguments, bang goes the gun, and down they come lifeless to the ground. My role is to be the labrador who retrieves them. Our lunch discussion on that first day was about the arguments advanced against using sophisticated technology like predictive coding – not specifically Equivio’s product but any of the high-end software applications which take input from senior lawyers on a subset of documents and use it to make relevance and other decisions about the rest. The only plausible argument against the use of such applications, if you discount the self-interest of lawyers who make their money from setting large teams to read all the documents, is that there is as yet no court decision which expressly approves of the use of such technology.
As Judge Peck noted at Carmel, there is no decision approving the use of keywords either, and both he and Master Whitaker in Singapore addressed this primary objection. Warwick Sharp instead rattled off a list of uses for predictive coding which needed no judicial approval – QA of your own results and a quick assessment of your opponents’ discovery were amongst them. I did not need to go to Nashville to hear this, but there were many who had gone there for just that purpose. Later that day, I met in quick succession two people whose role within their firms required them to marshal just these kinds of arguments for the benefit of their lawyers, and I passed on what Warwick had said more or less verbatim. That alone justified being there, and you only really get that kind of opportunity at ILTA, where the mix of educational and social events, coupled with the informality and relative leisure which differentiates ILTA from the frantic pace of LegalTech, encourages this kind of discourse.
The venue
The Gaylord Opryland Resort covers 56 acres; it has 2881 guest rooms, 220 suites, an atrium 150 foot high and 4.5 acres in extent plus a second atrium of an acre which comfortably swallows two waterfalls, tropical gardens, a restaurant and a bar; the resort has 15 restaurants in all, a river, and several hundred thousand square feet of exhibit hall and conference facilities. There were people whom I knew to be there amongst the 1200 registered delegates at ILTA whom I did not see at all.
You wouldn’t find me checking in here for a holiday, but the Gaylord resorts are perfect for an event like this, provided that you don’t mind a 20 minute round trip between the conference centre and your room, as I had. The big events - the opening party, the big sessions and the final dinner – fitted comfortably into the cavernous rooms but there are plenty of quiet corners for conversation. Read the rest of this entry »
What tells the swallows to gather on the telegraph wires before starting their migration southwards? One has to ignore, I think, the possibility that the telegraph wires are part of their communications network. Perhaps the birds all use an avian version of Twitter. Perhaps, indeed, that is why Twitter is called Twitter.
The subject comes up because last week saw a number of articles about computer-assisted document review after what I described recently as A Lull in the Predictive Coding Battle. These do not appear to be copycat articles (except this one, which is expressly reactive to the rest) and each of them must have been written in ignorance of the fact that others were also writing on the subject. There appears to be no common springboard, and they are comment articles rather than combative ones by participants. Perhaps everyone needed to write one last article before pushing off on holiday and this was thought to be an easy subject.
That conclusion does not in fact do justice to the quality of some of these articles. For those of you who do not have Twitter permanently open on a dedicated screen, it might be helpful if I draw attention, without great commentary, to the more interesting of them. I should say, incidentally, that I do not by choice do two big articles on the same subject within a a few days – there is plenty of other good technology out there, other areas of eDiscovery / eDisclosure of significance and much to write about that is not directly about technology at all, such as the certification debate. The real theme here, and the reason why these articles are worth capturing in one place, is that they encourage investigation into what is right for your cases, which may be something far less sophisticated than the predictive coding technology which gives this spate of articles its label.
If I include my own one first, it is because of a comment which came from a reader and not because it needs another airing so quickly. It was called Judge Peck and Predictive Coding at the Carmel Valley eDiscovery Retreat and its timing followed the speech it reported. Reactions included an e-mail comment which, whilst approving of the article itself, reckoned I had omitted one important subject. Lawyer adoption of discovery technology is slow, my correspondent said, because lawyers earn a great deal of money from manual review and have no interest, in any sense of the word, in investigating ways of reducing the chargeable hours.
I left this subject out of my article mainly because it formed no part of the speech which I was reporting. I don’t mind being discursive (you can go elsewhere for the short, snappy stuff) but some articles must stick to their headlined themes, and this was one. Besides, once you start looking at what are colloquially called “vested interests” (“colloquially” because the true meaning of the term has a narrow legal sense) where do you stop? Every change in business practices brings winners and losers. If you talk up technology solutions, you appear to be running down outsourced document review (you are not, or, at least, I am not – it is the informed choice which matters); reduce discoverable volumes and you hit hosting fees; reduce lawyers’ chargeable hours and – well, they have to find a better way of offering value to their clients. That is how business evolves. Read the rest of this entry »
The role of a journalist in war, it is said, is to come down from the hills after the battle and bayonet the wounded. I will content myself with a tour of the battlefield.
If this means nothing to you, you may care to refer to my long article Predictive Coding Wars: Recommind Contra Mundum in which I cautiously navigated a war of words which broke out when information software company Recommind issued a press release headed Recommind Patents Predictive Coding. I reported the reactions of others whose technology is of the same kind (I’m treading carefully here with my choice of words) and of market commentators, ending the story with an article of 16 June by Recommind’s CEO, Bob Tennant, headed Of Predictive Coding and Patents.
It is probably not a coincidence that Warwick Sharp has taken his headings from Shakespeare’s darkest plays, Macbeth, Hamlet and King Lear. Shakespeare, of course, has something to say on every subject, including this one – is this Much Ado About Nothing? Do we say, like Mercutio as he bled to death, “a plague o’ both your houses”? Give me a couple of hours, and I could write a whole relevant paragraph made from quotations from Shakespeare’s plays – you might say, for example, that the whole subject is “Greek to me” as Casca said to Cassius, and that you don’t understand a word of it.
We all have things we do not understand – I would lump string theory, Serbo-Croat and line dancing together as areas of skill or knowledge which I am happy to do without. I do not understand, any more, how a motor car engine works – the “any more” signifying both that they have become more complex and that their reliability removes the need to understand what happens when I turn the key. Do you need to know how predictive coding works, what can be patented and what cannot, and how it differs from potato peeling (to take Warwick Sharp’s analogy)? No, you don’t, any more than I need to know what happens when I turn the car key, but you ought to know what advances have been made in computer-assisted document review.
I take a look at some of these applications about once a year – I saw Recommind’s Axcelerate Review & Analysis solution demo on Friday, as it happens, and it is about time I caught up with changes to Equivio’s Relevance since I last saw it. I do not have to go anywhere to see these demos – they are brought to my desk over the web, and are “live” in both senses – a human is presenting them and they involve real-time searches of live data. I can interrupt and ask the demonstrator to go back to explain something again, and they are a painless and informative way of catching up with developments or, if it is all new to you, of understanding these tools and what they can do for you.
As I say, Warwick Sharp’s latest article repeats what was the theme of Equivio’s first riposte to Recommind’s claim – “May the best product win”. What is “the best” is not capable of absolute measurement or, rather, I am not qualified to give a view as to which is the best even if it were politic to try. There are several choices here (Recommind and Equivio are not the only players) and the important thing to understand is that the competition between them drives the technology upwards and the prices down. Any conclusion reached a year ago about what is right for you and for your cases and clients ought to be reviewed – just as your clients are probably reviewing which external law firms are best equipped and skilled for their eDiscovery.
Leaving aside Australian conferences, this was my fourth AsiaPac event. Two years ago, I co-chaired a conference for LexisNexis in Singapore. Shortly after that, Jeffrey Teh and others from LexisNexis set up InnoXcell to bring business events to the region. I did conferences with them last year in both Hong Kong and Singapore and was pleased to be asked back to Hong Kong for this week’s conference.
Here is a Twitter exchange between me and whoever tweets on behalf of @Exterro and @eDiscoveryGroup after the first day of the conference:
Me: Day 1 of eDiscovery conference in HK ends – a good day. Two sessions down and one on costs to go tomorrow
Exterro: How has that conference being going? Any ground-breaking stuff happening?
Me: That is not what to expect here – slow attrition is the target rather than breaking new ground
Exterro: Well then how is the slow attrition going? [He doesn’t give up, this one]
Me: Steadily and in the right direction
eDiscoveryGroup: “Steadily and in the right direction?” What direction are they headed?
Me: If I’d known I would provoke an inquisition from all corners I’d have kept my trap shut. My report will follow.
So here is that report. “Steadily and in the right direction”, as used in my tweet, has its plain English meaning – nothing dramatic has happened in Hong Kong in e-Discovery terms since I was last here, but there is interest from a wider range of companies and lawyers provoked by much the same pressures as arise elsewhere. As with everywhere else, we need to move on from “What is native format?” to “How can I best reach my client’s objective?”. Read the rest of this entry »
It is a novel experience to spend a whole Saturday writing a 4,330-word article whose conclusion is that none of its subject-matter is really very important to one’s readers, however much it means to the participants in the story.
If you have come to see me take sides in the predictive coding war of the last few days, you will be disappointed. My job is enlightenment: picture me, if you like, as a small boat sailing between the double line at Trafalgar as the shots fly overhead, trying to give an update on the state of the technology being used rather than a partisan account of the battle. Actually, it has been more like Sink the Bismarck, with enemy ships and planes great and small all directing their fire at one target. Fortunately for Recommind, playing the Bismarck in this scenario, we don’t get to see the final reel.
For those who do not know, I am funded on a flat-rate basis by sponsorship from the companies whose logos appear on the right. Anyone who expects me to take sides misunderstands the nature of my role. It is not just a matter of not biting the hand that feeds me, nor of holding the ring between them when they start fighting each other. The aim is to try and shine a steady light in the darkness for the benefit of those who must get on with the job of managing electronic discovery / disclosure, and to keep it burning whatever is going on around me. I do not actually think that the market gives two hoots for this battle or its outcome (if there is one), but it may be helpful to have a distillation of the debate, if that is not too dignified a term for it.
While we are on disclosure of interests, I should say that I know nearly all the people mentioned here apart from Henry V, Hamlet, Alice and Humpty Dumpty, Houdini, Pontius Pilate, Tom, Dick and Harry, Lt Farley (late of the Confederate Army) and a couple of the referenced authors. Read the rest of this entry »
I could sit here all morning trying to come up with a succinct heading which captures everything which is going on in eDiscovery / eDisclosure at the moment. The big things happening at a corporate level have greater long-term significance than mere changes of ownership, but the conferences, the articles, the cases and the rest don’t stop because of them. I have been at back-to-back events – IQPC in London and CEIC in Orlando, with a panel about the Bribery Act at Pinsent Masons with thebriberyact.com in between; there is more coming up. My heading, workmanlike rather than inspired, reminds us that this everyday stuff goes on daily whilst a bigger game plays out in corporate board-rooms.
I wrote up IQPC before I left for Orlando and will write about the Pinsents event and CEIC shortly. I rarely post things (or even tweet) when I am away, and this short piece is just to confirm that I am still (or again) at my post. The sentry duty analogy is deliberate: just before I left, Autonomy bought Iron Mountain’s digital assets; Gartner’s Magic Quadrant for eDiscovery Software came out whilst I was in Orlando; I had just parted company with Eddie Sheehy of Nuix when the announcement came through of a major investment in Nuix; I dropped off for a few minutes yesterday evening (I don’t need much sleep, but whole nights spent flying have to be made up somewhere), and woke to discover that Symantec has agreed to buy Clearwell Systems (the links are to their respective announcements); the wires are full of Recommind’s announcement of a partnership with email archiver Smarsh. The international ediscovery world is spinning faster than it did last week.
These are all interesting and important and I will come back to some of them in due course. Much of it is analysts’ territory, and I am concerned more with the nuts and bolts of e-discovery / e-disclosure – what judges are thinking, what lawyers should be knowing and doing, and what practical problems face them. I will let the news stories simmer whilst I catch up with what I have been hearing and speaking about at the hands-on level. They are different strands of the same story anyway – the continuum from email archiving through to ediscovery for litigation and compliance purposes appears in both the company stories and the day-to-day practical stuff. Read the rest of this entry »
There was something for everyone at the IQPC Document Retention and EDisclosure Management Summit in London this week. The Bribery Act gave added incentive for those responsible for information management within organisations; at the other end of the process, prosecutors and judges from the US and the UK emphasised that the target is not merely formal compliance with court rules but business objectives and business efficacy; in between, the technology begins to appear – at last – as a tool to support the business and procedural requirements and not, as it used to, as a free-standing objective of its own.
We have also finally eradicated the impression that US judges, providers and practitioners are missionaries come to civilise a backward race. We are all in this together, thanks to four specific facets of globalisation: the need to collect data worldwide and the privacy conflicts which that brings; the fact that the dominating new technology for creation and dissemination of data (of which Twitter and Facebook are but two examples) goes global immediately; the convergence of thinking on court-led procedural matters such as co-operation and proportionality; and now the Bribery Act, matching and exceeding the reach and the implications of the US Foreign Corrupt Practices Act. One US visitor said that she had gone away from a previous conference wondering why she had crossed the Atlantic simply to hear other Americans speak; there are still plenty of them here, but their contribution now brings a world view, not merely a US one, to what has become a much more collegiate group of experts.
As always, I went to relatively few sessions beyond the six in which I took part because I use these events as an opportunity to talk to as many people as possible. I mention this not merely to justify my failure to report comprehensively on the whole conference but to emphasise a hidden value in these events, and an overlooked justification for time taken out of the office. Unclear about some particular technology and whether it its use is likely to be acceptable in a court? Talk to a few people who provide it and then to a judge. Not sure whether your company is ahead or behind others in compliance matters? Have a chat with people who hold parallel roles in other companies. There is much more to these events than one-way communication from the platforms. Read the rest of this entry »
Recommind are presenting a webinar in conjunction with Inside Counsel on Thursday 21 April (that’s this week). The title is The UK Bribery Act: Much Ado About Nothing, Or Game-Changer? and registration is here.
How can one best describe Howard Sklar’s blogging; withering, skewering, contrarian; he describes himself as “a crusty, irascible curmudgeon.” Here’s how I would describe Howard – one of the best compliance practitioners and commentators around. His insights are great and he uses the right touch of humor and real-world examples to get his point across. His blog is great and a ton of fun to read so saddle up and enjoy the (compliance) ride.
A community of bloggers and tweeters has quickly grown up around the the Bribery Act – you will find your way in by using Tom Fox’s list linked to above. The participants do not always agree with other and don’t hesitate to say so, which is what gives the articles, and the accompanying Twitter banter, their edge.
I confess to doubts that Howard is quite the “crusty, irascible curmudgeon” he claims to be – I have only met him once and then only briefly, and found him no more curmudgeonly than I am (oh, all right – perhaps it is an occupational hazard). If his webinar is as thought-provoking as his writing, then it will be well worth listening to.
In case you are setting off for a meeting in London with Huron Consulting Group, LDM Global or Hobs Legal Docs, you may care to note they have all moved premises in recent weeks. Recommind has also moved, though I think I am late in catching this piece of information.
Nigel Murray and his team have moved from Trilantic’s former offices to Huron Consulting Group offices in the verdant pastures of the West End. Nigel is keen to point out that they are only twelve minutes from Bank Station in their new offices at One Connaught Place, London W2 2ET. The telephone number is still +44 (0) 207 042 1000 and the new web site address is http://www.huronconsultinggroup.co.uk
After many years in Great Eastern Street, LDM Global has moved south and taken larger premises at 11 – 21 Paul Street, London EC2A 4JU. The new telephone number is +44 (0)203 463 8444. The web site address remains http://www.ldmglobal.com
Hobs Legal Docs has also outgrown its old home and can now be found at 58 Farringdon Road, London EC1R 3BP. The telephone number is +44 3217 0300 and the web site address is still http://www.hobslegaldocs.com/
I seem to have missed the announcement that Recommind was moving its offices – I knew it was happening to cope with Recommind’s significant expansion recently, but missed the moment. The new address is 6 Snow Hill, London EC1A 2AY. The telephone number is +44 0207 002 7735 and the web site is http://www.recommind.com
This sort of information is vital for those who, like me, use the iPad map feature. That allows you to enter the name of the person or company to be visited and see immediately where they are on a map and how to get there from your present location or elsewhere. Tell it that you are going, say, from LDM Global to Huron Consulting and, if both addresses are in the iPad’s address book, it will show you the route. All we need, really, is that when people in our address books move offices, the updates are pushed at us automatically. Think how much time that would save us in a year in an industry in which people move from company to company, or when, as here, whole businesses move together with several of your contacts. I can think of better occupations on a sunny Sunday than updating addresses and, in the case of those whose email addresses have changed, the Outlook rules which apply to them.
A computer with a homely name like ‘Watson’ and a US quiz show may sound like trivialisation of the serious subject of electronic discovery / eDisclosure. Equally, a reference to ‘Probabilistic Latent Semantic Indexing” sounds way over the top for a non-technical audience. What if we ally the speed of a computer with the sophistication of software algorithms to mimic human thought-processes? New skills are needed.
Let me make it clear right from the start that I do not understand the deeper technology behind Probabilistic LSI and that I nearly overlooked the many articles about IBM’s computer ‘Watson’. I got the message that ‘Watson’ had beaten the star contenders in a US television quiz game called ‘Jeopardy!’, and gathered also that many commentators at the geek and nerd end of the electronic discovery world were excited about it. What I missed was the experiment’s potential for explaining in lay terms what one might expect from the higher end of eDiscovery / eDisclosure applications. It was only when I caught sight of the name Recommind in one of the articles that I thought I had better read further.
Recommind is one of the sponsors of the eDisclosure Information Project, and I am familiar with the user interface which puts a friendly face on what are evidently extremely sophisticated functions. Recommind is not the only provider of intuitive front-ends to complex algorithms, and I pick on it mainly because it was the most familiar name in the first article I read about ‘Watson’. My purpose, however, is to use the Jeopardy! example to illustrate the searching power of some of the tools available to lawyers faced with a very large volumes of data. Most lawyers are familiar with keywords, because they use them every day in Google, and treat Google as a simple keyword matching tool – Google is in fact very much more sophisticated than that, but most of its users neither know nor care as long as they get an answer to their question in the first few hits.
eDiscovery obligations, however, require more than gathering the first few hits or even the first few thousand hits. They also require more than simple word matching, yet many lawyers reject (that is, do not even look at) such tools because of perceived reliance on a “black box”. The ‘Watson’ and Jeopardy! example gives us a good explanation in lay terms which may help break down these fears. (There are other fears, to do with the consequential potential loss of lawyer roles and jobs, which I will come on to in my next article). Read the rest of this entry »
A couple of years ago, Charles Christian of the Orange Rag observed that whilst other providers made a lot of noise about what they were going to do in the UK market, Recommind quietly got on with making sales. The company has been less quiet about it lately, particularly in law firm enterprise search, as can be seen if you just run your eye down the list of press releases, with Mills & Reeve, Mischcon de Reya, Macfarlanes and Clifford Chance all named in the first page.
These in-house information systems, all rebranded during 2010 with the Decisiv label (Search, E-mail Management and Categorisation) have been joined over the same period by ediscovery / e-disclosure products with the name Axcelerate (one covering ECA and Collection and one for Review and Analysis). The same softly-softly approach to marketing has been evident with these products. My evidence as to Recommind’s penetration with these products is anecdotal, consisting largely of hearing the name mentioned by lawyers and others to whom I speak. It turns up enough for me to know that the products are getting serious attention.
I now know Recommind rather better than I did when Charles Christian made that comment, but it remains a mystery to me how so small a European team achieves this, particularly as there is business being done in Germany as well (see a video made by Project Counsel at IQPC in Munich, in which European Director Simon Price and European Sales Director Hartwig Laute are interviewed).
After leaving Oxford, I
qualified as a solicitor in 1980.
I have worked as a consultant
and developer in litigation support since 1993.
My primary focus is on the encouragement of
e-Disclosure by working with the courts and
with suppliers to achieve a joint approach.
Posted by Chris Dale 
