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

February 11, 2013

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

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


Taking Predictive Discovery out of the black box

December 20, 2012

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

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

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

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

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

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

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

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

June 25, 2012

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

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

The Center Hong Kong

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

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


Australian ediscovery round-up

June 28, 2010

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

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

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


Far and wide eDiscovery at the Chilli IQ conference in Sydney

June 13, 2010

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

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

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


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

May 13, 2010

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

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


Structured data is neither as easy nor as difficult as it sounds

April 26, 2010

Lawyers tend to overlook structured data. If they think of it at all when giving disclosure, it goes into the box marked “too difficult to deal with”. A decision that it is disproportionate to handle it may be right, but “decision” implies that its value has been weighed against cost, which is not the same as just ignoring it. I asked Jim Vint at FTI Technology to give me some examples where structured data was crucial to a case.

In general, lawyers like structure, with its implication of order and of things being in the right place. I do not necessarily mean that they (or “we”, strictly, since I am a lawyer too) prefer that every day is the same from alarm clock to Ovaltine (that is what the civil service is for as a career), but lack of organisation wastes time, and time is money. If you need a library book, your favourite coffee, or a particular iTunes track, then it is helpful to have some degree of pattern and consistency to help you find those of a like kind in a regular place. You expect a library to group its stock by subject and type, and not have law reports, textbooks and periodicals stuffed any old how into random shelves or all over the floor; imagine going into Starbucks and being told that every possible permutation of coffee, chocolate and the rest is in a cup somewhere, but that you must lift each lid to see which is which; you would not appreciate having to scroll down endless lists of iTunes tracks until you find the one you want. We go for the structured stuff every time. Read the rest of this entry »


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