LexisNexis Counsel to Counsel Forum – lawyers staying close to the business and its information

January 15, 2014

My title reflects two themes of interest (that is, they interested me) at the LexisNexis Counsel to Counsel Forum 2013 which took place in Brighton in November. One was about lawyers (whether internal or external) understanding the business for which they work; the other was about social media as a means of keeping in touch with the rest of the world. The obvious thread between these subjects was awareness and connection, and about knowing of and being known by others.

RecommindI was there to join Nick Patience of information management provider Recommind to talk about applying information management technology to business challenges, to proactive risk analysis, to eDiscovery / eDisclosure and to early assessment of litigation and investigations (I’ll stick to “eDiscovery” after this – the venue may have been in the UK but the principles apply everywhere, and everywhere else talks of “discovery”).

The first part of this article covers the value of communication between lawyers and the business, generally and in the specific context of information governance. A second part will report on the social media session itself. Read the rest of this entry »


The Jackson Reforms encourage proportionate eDisclosure / eDiscovery in any jurisdiction

January 24, 2013

I am taking part in a panel discussion at LegalTech next week with Integreon and kCura on the subject of the Jackson Reforms. We will emphasise that the rule changes generally reflect duties to which lawyers are subject anyway, and in any jurisdiction, to find the best tools and techniques for conducting disclosure / eDiscovery proportionally.

I pointed yesterday to an observation by Mr Justice Ramsey that there will be “a few sweaty palms” as lawyers face the forthcoming changes to the UK’s civil procedure rules. Collectively known as “the Jackson Reforms” after Lord Justice Jackson who inspired most of them, they have also acquired the nickname “the Big Bang” thanks to a decision to roll out all the changes together.

This seemed a mistake to me when it was first announced 18 months ago, and it seems even more misguided now that we are a few weeks away from the implementation date and have yet to see the final form of the rules. I wrote about that in my article Uncertainty means expense as we wait for the Jackson rules.

The combination of fear and heightened expectations which results from this obscures the fact that the rule changes relevant to the disclosure aspects of case management are radical only in that both judges and lawyers have ignored the rules as they stand – a point which Lord Justice Jackson emphasised in his Review of Litigation Costs. They also reflect what both clients and courts should expect anyway. Read the rest of this entry »


TransPerfect acquires Digital Reef for fast processing and ECA tools

October 4, 2012

In my recent article ILTA 2012 Part 3 – Some market observations I said this:

There are rumours of at least one significant acquisition – by “significant”, I mean that a major player will buy a strong but smaller niche player to give it new markets and not merely talent and client lists.

I would like to say that my antennae had picked up TransPerfect’s acquisition of Digital Reef, which was announced today, but that would not be true. What I had heard was something different and did not identify the target. It is probably not the case either that TransPerfect’s primary motive was the opening of new markets, since TransPerfect seems well able to open new markets anyway.

The acquisition is, however, consistent with the broad idea expressed in my ILTA article – that bigger players will fill the gaps in their market offerings by acquiring the best tools and skills, if necessary by buying the companies which own them. Digital Reef’s Big Data processing power for enterprise-scale eDiscovery and its early case assessment abilities make an attractive addition to TransPerfect’s service offerings.

TransPerfect is a big player with annual revenues of over $300 million. It is the world’s largest privately-held provider of language services and technology solutions with offices in 80 cities on 5 continents. It also has hosting facilities in London and Hong Kong amongst other places.

Digital Reef’s clients will be pleased, I would guess, to have access to the latter as well as to the increased footprint, the support, and the backing for future development. I recall a conversation a long time ago with Ivan O’Sullivan, Chief Operating Officer of Digital Reef and now joining TransPerfect’s senior management team, about his unwillingness to take on projects which Digital Reef would find hard to support for geographic reasons. That brake is now removed.

I await future developments with interest.

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Early Data Assessment – a webinar with AccessData and Apersee

May 31, 2012

I took part in a webinar yesterday with Caitlin Murphy of AccessData, Tom Gelbmann and George Socha of Apersee, and Chad Papenfuss of the Federal Trade Commission. Our subject was Early Data Assessment and the title we gave to it was Early and Often – the word “often” implying that assessment is a continuing process which goes on throughout a case.

We began with the steps which can be taken to work your way into the problem, perhaps starting with the primary document sources of the main players and using their documents as a way of establishing the issues and facts, the holes which must be filled and the potential costs of moving out to a wider set of documents should that be required.

The rise of social media is a growing problem, alongside its many benefits. However many terabytes you have of email and Word files, there is plenty of scope for a blog post, Facebook entry or tweet to become the turning document in a commercial case as well as in divorce and personal injury whence most examples have come hitherto.

The courts are becoming increasingly involved in the assessment of the data implications – the SDNY Model Order for Complex Cases and the UK Electronic Documents Questionnaire both aim to give the court an early feel for the scale of the data as a precondition for understanding what course in proportionate.

Mention of the SDNY Model order took us into the area of lawyer competence – the lawyers are required to certify that they understand the implications of the sources or have engaged the services of someone who does. One cannot really define “competence” beyond reciting the rules governing lawyer capability. The definition must necessarily include “knowing the limits of your knowledge”. A good starting-point is a check-list, perhaps using the UK Questionnaire as a starting-point, to make sure that whole areas – such a social media – do not get overlooked entirely.

In answer to a question from the audience, we considered the circumstances in which forensic collection would be necessary or justified. One often-overlooked element is the relative continuity of personnel within the company and within its chosen provider of forensic services – would the person doing the collection still be available when the time came to prove what was done?

We ended with a look at costs and the ways of controlling them. It would be a good start to know what you spent last year, because how else can you measure the value of any investment aimed at reducing those costs?

This was enjoyable to do in such company. We were joined by 244 live listeners, a very satisfactory audience.

The webinar is available on demand on the Apersee site.

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Proof Finder: 1,000 Nuix licenses at $100 for charity – you learn eDiscovery while others learn to read

December 1, 2011

EDiscovery software provider Nuix has come up with an imaginative plan which simultaneously provides lawyers and others with hands-on opportunities to develop technical eDiscovery skills and helps increase literacy skills to children in developing countries.

Like so many imaginative plans, it is easily understood: you pay $100 for Proof Finder, which gives you the same processing, search and analysis capabilities as other Nuix eDiscovery solutions with a 10 Gb data limit. Nuix will give the entire proceeds to a charity called Room to Read, which works in developing countries to increase literacy skills among primary school children, and support girls to complete secondary school.

1,000 such licences are to be made available over a 10 week period and the licence itself lasts for 12 months. Proof Finder is available at www.prooffinder.com.

There is an obvious connection here – though I do not think that it is what drove Nuix’s choice of charity. Literacy is a basic skill which people need to make progress in life. You cannot move beyond the basics without getting your hands on books. Lawyers, in-house information managers and those with responsibility for law enforcement and investigations can develop their skills in a practical way if they can actually use software designed for the purpose. It is rarely possible to gain such experience without significant investment in software licenses.

The scheme is explained in this press release. You get hold of the software in the same way as you acquire many more everyday applications by making an online payment, downloading a file and entering a licence number given at the time of payment. Working with a fully expanded dataset of up to 10 Gb, you can catalogue and search files and e-mails, look for particular types of file or content, and undertake an early case assessment through a user-friendly interface.

Nuix is giving live training webinars starting on 7 December, and online support is available in a variety of forms, including peer-to-peer help as well as user documentation, FAQs and training videos. The idea is not simply passive learning – you can use this on live cases immediately, getting your hands dirty on real data and finding out what this kind of software can do.

One of my recurring themes this year is that lawyers have difficulty in understanding what actually happens when eDiscovery applications are brought to bear on their clients’ documents and data.  Craig Ball, who is a lawyer as well as a skilled forensic investigator, often reminds us of the days when a client would bring in a file and you could dive straight into it and start giving initial advice. This  initiative gives lawyers the opportunity to see the transition from the source electronic documents to a reviewable body of data with the same immediacy.

The cause, Room to Read, is obviously a good one, and worth a $100 donation anyway. To help children to read whilst giving yourself a new set of skills is not something to be missed.

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Digital Reef Panel at the Masters Conference – Early Case Assessment: is it working?

October 30, 2011

I was a member of a Masters Conference panel brought together by Digital Reef to discuss the question whether early case assessment is working as a way of saving time and money in litigation, as well as for improving its outcomes.

The moderator was Shawnna Childress of Navigant and of Women in EDiscovery. The other panellists were Steve Akers, CTO of Digital Reef, Bill Belt of LeClair Ryan, Browning Marean of DLA Piper US and Michelle Treadwell Briggs of Goodwin Procter.

“Early Case Assessment”, capital letters and all, is one of those expressions which lost all meaning when commandeered by technology marketing departments. It pandered to the idea that there existed a push-button technology solution, and the side-effects included two which were less than helpful: one was that we could defer thinking about cases until they hit us; the other was to make lawyers feel that they were bit-players in a technology solution.

The first of these means that we are always firefighting. Although companies are beginning to realise that there is no realistic alternative to a proper document retention policy and the technology and processes to back it, the reality in many companies is that this involves resources which are not readily available (perhaps because no-one has ever bothered to add up what the fire-fighting is costing – see this article by Katey Wood of ESG which suggests that a simple computation of external legal and ediscovery spend might provoke a different approach to in-house resourcing). Even where there is no in-house capability, companies ought at least to know what they will do on the occurrence of any reasonably foreseeable triggering event – a fire drill to be invoked to aid fire-fighting. Read the rest of this entry »


Another London doorway to Equivio technology

November 2, 2010

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

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

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


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