The FSA swoops on the unprepared

The American Museum of Natural History in New York contains many tableaux – scenes of animals and man in various stages of early development. My son and I spent an afternoon in there when LegalTech had ended and I found that I recognised many familar types from the litigation world amongst the figures, most obviously (too obviously perhaps) the dinosaurs of whom I wrote in LegalTech lessons from extinct species.

I have now been through the photographs which I took with half an eye on their value as illustrations to this commentary. You may expect to see pictures of walruses and buffalo who look like judges,  primitive men for whom technology meant flints and whose idea of co-operation involved spears and clubs (you know who I mean,  all you who use discovery / disclosure as a bludgeon) and, of course, dinosaurs.

As the sun sinks slowly in the West we say farewell to LegalTech – or do we?

You are all too young to remember the clichéd ending to those American travel documentaries which always ended with the sun sinking slowly in the West. So am I, despite being old enough to remember telexes and carbon paper as the must-have office equipment. The expression lives on, in the UK at least, because of the Peter Sellers parody “Balham – Gateway to the South”, which itself dates from 1964 – a cliché kept alive by a parody which is itself too old for most to remember.

My photograph was taken on the Queensboro Bridge as we left LegalTech for JFK this year, made possible by the generous windows of the large black limousine which Nigel Murray had commandeered at a good rate with a degree of resource doubtless acquired in his army years. This combination of clichés, parodies, sunsets, New York and LegalTech was brought to mind by a slight sense in some quarters that this Leviathan of a show may have had its day.

Autonomy panel at LegalTech points to proactive clients – and lawyers

Panel sessions at LegalTech and other conferences combine the best of all worlds so far as I am concerned. The burden is distributed – the moderator has to have a plan and the ability to herd the speakers through it, and those on the panel have to have an agreement as to who is going to cover what, but you don’t have to prepare slides a month in advance nor stand alone under the spotlight hoping that the words sound as good live as they did four weeks ago in the seclusion of your office.

There is enough structure but also room for spontaneity as the discussion takes turns which were not on the formal agenda and, as long as the moderator is good enough to haul you back to the advertised programme, they can be fun to do – assuming, of course, that your fellow-panellists  have something useful to say.

There was no problem on that score with the two panels which I did for Autonomy at LegalTech in New York earlier this month. The programme was the same for both of them. Carter Hopkins, in-house counsel at McAfee, and I were on both of them, but the third player in one was Florinda Baldridge, Global head of Litigation Support at Fulbright & Jaworski and at the other was Laurie Weiss, co-head of Fulbright’s E-Discovery and Information Management Practice Group. Deborah Baron, VP Legal & Compliance at Autonomy, Inc. was the able moderator.

Trilantic panel explores international e-Discovery initiatives at LegalTech

Not much changes at LegalTech from year to year. Sure, the trends come and go – “the move to the left”, Twitter, and “Please look at my CV” being this year’s big things – but for the most part, the same booths, the same faces and the same routines turn up every year.

One discernible change, however, is the interest in what is happening in other jurisdictions. “Abroad” does not rank high in US consciousness. We mocked George Bush when he asked a Welsh singer which state Wales was in, but most Americans, I think, would just wonder why anyone would care which state Wales is in. Sarah Palin thought Africa was a country, but no-one seemed seriously to question whether her foreign experience – a fly-by of some US bases, a refuelling stop in Ireland and a holiday in Mexico  – was adequate for a vice-presidential candidate. In the e-discovery world, most Americans see Europe as a cross between a modest museum and a commercial colony full of obstructive civil servants obsessed with data privacy. For years, the value of the dollar and a terror of terror kept them all at home.

You do not see this until you go to the US. Most of the Americans I know well have a well-rounded world view but that, I now realise, is because I meet most of them outside the US – they self-classify themselves as people who know of the world outside America because that is where I come across them. The insular ones – including, unfortunately, those who make political and commercial policy – stay at home. This matters because the US is still the commercial powerhouse of the world – no-one in America cares, frankly, what Gordon Brown thinks about America, but it does matter what America knows, or thinks it knows, about the rest of the world.

Legal Inc panel at LegalTech lives up to its billing

Litigation support providers from the relatively small UK market  made a good showing at LegalTech in New York this year. Amongst them was Legal Inc who hosted a panel of luminaries moderated by Charles Christian of Legal Technology Insider. LTi now has an American Edition, compounding the sense that the UK has something to contribute to the US legal technology scene.

The Legal Inc panel consisted of Sanjay Bhandari of Ernst & Young, Matthew Davis of Lovells and Andrew Haslam of Legal Inc, with the US represented by Peter Cladouhos of Paul, Hastings, Janofsky & Walker LLP.

The advertised purpose of the panel was to draw attention to some of the pitfalls and dangers inherent within electronic disclosure that can ensnare the un-prepared, and to explain how preparing for, and meeting the demands of, electronic disclosure can be scaled for large, mid-sized and even small organisations. The UK has some relevant case law at last and that, coupled with a planned EDD questionnaire  and increased judicial interest in the time- and costs-savings, suggests that the ability to handle documents and data electronically is permeating down to smaller organisations and more everyday cases.

Lisa Burton of Legal Inc introduces the Panel

Peter Cladouhos, Sanjay Bhandari, Matt Davis, Andrew Haslam, Charles Christian

Judge Facciola LegalTech messages are for UK as well as US lawyers

There was something almost surreal about the discovery that the LegalTech organisers had failed to record US Magistrate Judge John Facciola’s keynote speech, given that Facciola regularly delivers Opinions castigating parties either for faulty decisions about technology or for technological incompetence. Did someone decide “Nah. It’s only that Italian guy – let’s not bother” or did someone press the wrong button on the tape recorder? Whatever the cause, it is a pity. The speech, like many of John Facciola’s Opinions, should be compulsory listening for lawyers and judges, and as much on the UK side of the Atlantic as on his.

The speech was introduced by Neil Aresty of Legal Computer Solutions, Inc. Aresty made reference to the “Christmas Eve decision” in Covad Communications v Revonet. A paragraph from that decision will suffice to set the scene and to show why Judge Facciola strikes a chord in the UK. Speaking of an archaic form of document request which ignored the last 40 years of technological development, he said:

“While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Parallel views from across the Atlantic

The respected e-discovery commentator Tom O’Connor has published his initial report on LegalTech on his blog, with the title The Big Takeaway from LegalTech New York. His patch in the US e-discovery scene roughly parallels mine in the UK. We did a panel together at LegalTech (see How safe is safe harbor?) and we are both involved with e-Disclosure Information Project sponsor Anacomp/CaseLogistix.

Tom’s main theme is the growing realisation of the importance of the clients’ data at the left hand (information management) end of the EDRM diagram, and the links between content management and electronic discovery. His comment is actually about the lack of such realisation by lawyers, despite the fact that clients and suppliers are moving there fast – Autonomy’s pending acquisition of Interwoven is clearly founded in part on this realisation.

Tom rightly ties this assessment of the lawyers’ slowness to grasp the point to Judge Facciola’s speech, which remarked on the stubborn refusal of lawyers to accept that technology must be understood by those who purport to conduct litigation. I will shortly put up my own report of Judge Facciola’s speech.

The key, in the US and in the UK, is education. Clients, courts and justice itself are badly served for as long as lawyers refuse to accept that handling electronic documents requires a modicum of knowledge about the subject.

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Kazeon to host judicial e-discovery webinar

I have yet to write up the tremendous speech made by US Magistrate Judge John Facciola at LegalTech in New York last week. My excuse, if such be needed, is that it contained so much of importance to anyone practising in any common law civil jurisdiction that it will take some time to capture what he said. For some unaccountable reason, the organisers failed to record it, making it the more important to write it up.

The influence of a judicial perspective on any aspect of case management is not to be under-rated, and this applies more to electronic discovery than to anything else. One of the issues we have in the UK, for example, is one of consistency of outcome – parties do not know what to expect from the judge and so cannot negotiate about the scope of disclosure within a known framework.

US judges are more willing to discuss publicly what they expect from parties, probabaly because they are taught about it and have more exposure to it than UK judges. Kazeon, who provide software and services for corporations, legal services providers and law firms to search for, retrieve and analyse data, has a webinar coming up at which the speakers include two judges.

Hanzo Archives show web archiving at LegalTech

So, you have got your mind round this “move to the left” bit they were all talking about at LegalTech and you are clear about the importance of information management, the first stage of the EDRM diagram as a start-point (the obvious start-point if you think about it) for the collection of documents and data for litigation or for facing a regulatory investigation.

You have your custodians sorted, know how you will manage your Microsoft Office documents, may even have got your mind round the HR and accounting databases. Sorted then, ready for anything, bring it on.

The chances are that you have missed one big thing – the corporate web site and intranet. Unlike, say, individual Word files, each part of a web site depends on others. Unlike your HR or accounting database it probably lacks the tools to check its own integrity, which may depend on elements beyond your control. It probably changed frequently, with no thought as to preservation of the replaced pages, still less the ever-changing content of any database which was the source of the components of the pages. Yet your web site was customer-facing, possibly included pricing or terms of contract, and could be vital evidence in any dispute or investigation. If you think that just copying it all onto a backup tape from time to time is the answer, have a go at restoring your last backup – if, indeed you ever made one.

That is the selling message of Hanzo Archives, whose Mark Middleton came to see me in Oxford a little while back after attending a conference at which I was speaking. I came across him again at LegalTech in NewYork last week, apparently happy that he had attracted attention even in the gloomy corner of the Hilton’s third floor which had been allocated to Hanzo Archives. His observations on what he learned from the booth’s visitors are on Hanzo Archives’ blog.

It is always good to see a British company carrying initiatives to the US, as well as to mainland Europe. It will be interesting to find out how much of the LegalTech interest converts into something more.

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How safe is safe harbor?

I spoke on safe harbor on a panel at LegalTech sponsored and led by LDSI. Does it give as much protection as its proponents aver? Why is Europe so concerned about data privacy anyway?

It is a beguiling expression, safe harbor. You picture small boats rocking gently in the sunlight behind a stout sea wall whilst the storms rage beyond. Your precious cargo of data shipped from Spain or Italy is protected from the threatening clouds marked “SEC” and “IRS” and can be processed and reviewed in peace by your trusty crew. European data controllers can sleep peacefully at night confident that they are protected from marauding information commissioners and angry data subjects.

Such is the appeal of the expression “safe harbor” that America started using it simultaneously for more than one completely different concept. One is the registration mechanism thrashed out between the European Commission and the US Department of Commerce in 2000 to mitigate the commercial impact for US companies of the EU Directive 95/46/EU of 1995 on the Processing of Personal Data. Another protects ISPs from copyright infringements by their users. The expression also occurs in Evidence Rule 510 to do with waiver of privilege. This article relates to data privacy.

LegalTech lessons for lawyers from extinct species

Only one practising UK commercial lawyer came to LegalTech in New York. Recession hit the litigation support industry before our eyes. One of the recurring themes there was that the clients are taking discovery in house.  Down the road we saw some other extinct species

As if LegalTech itself were not enough, Sunday, my first full day back from New York, lasted for 24 hours, thanks to disrupted sleep patterns, a full InBox and a five hour meeting discussing potential discovery developments in Australia and AsiaPac.

You know better by now, I think, than to expect a dutiful account of LegalTech. You get from me little in the way of faithful reports of worthy sessions, no deep market analysis, no breathless interviews with industry leaders. Others, I know, sit on the special pews reserved for bloggers and have their reports filed before the speaker has made it to the bar. I got to few sessions, although I did turn up, I think, to all those I was booked to speak at. There is no shortage of industry leaders to talk to – you bump into CEOs in corridors or go up to their eyries above cloud level at the Warwick Hotel – but journalistic scoops are not really my style and I am content to wait for the press releases. I am into broader sweeps than the last big sale or the next major release.

Discovery Practice Note issued in Australia

The Chief Justice of the Federal Court of Australia yesterday gave effect to the long-awaited Practice Note No 17 – The use of technology in the management of discovery and the conduct of litigation.

Those of us involved in drafting the proposed new Technology Questionnaire and draft Practice Direction in the UK have been keen to keep up with parallel initiatives in the Common Law jurisdictions. and particularly Australia and Canada.

The timing of its final release is good and bad from my point of view – good in that I am due to speak on a panel at LegalTech in New York next week about international initiatives in electronic discovery, and bad in that I have enough to do to be ready for tomorrow’s flight without exciting new developments to read up.

Fortunately, one of my co-speakers on that panel is Jo Sherman who was heavily involved in the drafting of the Practice Note, so I can leave it to her to cover it. I will read it on the plane and cover it in more detail shortly.

My thanks to Geoffrey Lambert of KordaMentha in Melbourne and to Seamus Byrne who each sent me a link to the Practice Note within hours of its promulgation.

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Welcome to Equivio as new Project sponsor

I am delighted to welcome Equivio as a new sponsor of the e-Disclosure Information Project. As I wrote in November (see New integration and new web site for Equivio) I met CEO Amir Milo at the Masters Conference in Washington. Equivio’s name was already a familiar one, but that meeting and a subsequent read-through of Equivio’s web site emphasised why Equivio is subliminally omnipresent in the data management world.

If, as I do, you spend your time explaining to lawyers, judges and corporates why technology must be used to reduce vast volumes of data and documents to manageable proportions, you learn three basic propositions – rely on illuminating snapshots not lengthy explanations, focus on the things which equate directly to the user’s own functions, and emphasise the benefits of using technology and not just the risks of not doing so. Equivio’s web site does just that, crisply and clearly.

OutIndex releases E-Discovery engine

OutIndex, the electronic discovery software company has added another string to its bow with the release of three Microsoft .NET components to allow others to build their own e-discovery applications.

Between them, the three components provide the tools for extracting metadata, searching data and printing electronic documents and e-mail messages to .TIFF or .PDF. These are the same primary components as those which OutIndex uses in its main processing system. OutIndex’s increasingly informative web site includes a page on its E-Discovery Engine as well as the rest of its widely-scaled product range, from its flagship application OutIndex E-Discovery down to its desk-top application eDiscoveryXpress for in-house processing.

Plenty to write about but no time to write

I had a patch recently when I had no time to write for a few days. Someone sent me a message, not exactly complaining, but making it clear that my apparent dereliction of duty had been noticed. It is not in fact a duty, or does not feel like one, and there is no shortage of things to write about. There is plenty else going on as well, however, and I cannot simultaneously do things and write about them.

Besides, the subject-matter of the article which sat at the top of the blog for a few days warranted the extra exposure before the next one took its place. It is called Fannie Mae – be careful what you agree to with e-discovery orders and concerned the lawyer in the US Fannie Mae litigation who agreed on behalf of his clients to discovery obligations which cost them $6 million (9% of their turnover). His clients were not even a party to the litigation. The outcome ought to suggest to any lawyer involved in disclosure applications that it might be helpful to scope a project before committing your clients to it. It is a suggestion as useful in the Birmingham Mercantile Court as in Washington D.C.

US Visa Waiver Program goes electronic with ESTA

UK visitors to LegalTech in February should be aware of a change to the method of applying for authorisation under the US Visa Waiver Programme. The familiar old green form, completing which used to fill up some of the time spent queueing in the immigration hall, has been replaced as of 12 January by an electronic system called Electronic System for Travel Authorization or ESTA.

Go to LegalTech 2009 in New York

Last year, I wrote articles after each of LegalTech in New York and ILTA in Dallas, lamenting the fact that almost no UK law firms were represented at the two most informative events on the subject of e-Discovery / e-Disclosure.

I thought it might be more helpful this year if I promoted the events in advance rather than in retrospect. LegalTech takes place in New York from 2 to 4 February. There are two pages on my web site which aim to persuade UK lawyers that it would be a good idea to go.

One simply advocates just that. The other is a list of events, many given or sponsored by UK suppliers, which I think ought to be of particular interest this year.

More will follow on this site, including some practical information about getting there and making the most of it. If you have any questions about going to LegalTech, please do not hesitate to contact me.

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Mancia: interest in US being interested in them

A growing theme on this site which will get more important in 2009 is that electronic discovery in the US is getting to be of more interest to us in the UK. This is not because the English courts are getting more involved in e-disclosure (they are, but that is not why we are paying more attention to the US). The new interest derives from US Opinions which have wider and more universal messages than hitherto.

Americans can pound each other to bits over “spoliation” and “defensibility” and we could not be more bored. Nor do we really want to be told how to do it at a judicial level (but we love the technology, thanks). That is in part because there is a growing appreciation that we have some pretty good rules of our own if only anyone would use them, as judges are beginning to – see Digicel, and Abela ( the links are to articles of mine about these English cases).

E-Disclosure Information Project first birthday

November marks the first anniversary of what became the E-Disclosure Information Project. It did not have that name when I ran a half-day training session for judges in Birmingham last November but it was effectively launched with that event. This Commentary began a year or so earlier.

That first session was made possible by generous support from forensic collections expert FoxData whose Ian Manning has continued to back what I do, by turning out to speak and with useful information and introductions as well as financially. Tyrone Edward, now at Ernst & Young Forensic Technology & Discovery Services, made the suggestion for a business model which has allowed me to spend substantially all my time on spreading information about electronic disclosure. The Project is sponsored by the companies whose logos appear here, but on the basis that it is independent and product-agnostic.

The main outputs from the e-Disclosure Information Project are what I write here and on my website, and conferences. There are 228 posts on this site. None of them are simple regurgitations of press releases – PRs are invaluable sources of hard information, but I am more interested in the context and the implications of a software or services initiative than in the bare words of a press release.

EPIQ Systems and ECM join forces

A long working relationships between Epiq Systems and Effective Case Management (ECM) reached a natural culmination on 1 February when the two businesses were combined. Tony Ratcliffe, the founding owner of ECM becomes a member of Epiq’s London office team.

LDSI and LiveReview

I am not sure how I have worked in the litigation support industry for 15 years without meeting Noel Kilby, nor why it should, eventually, have been easier to do so in LDSI’s office in New York when we are both based in the UK.

That is how it turned out, however. I went, with Mark Dingle of Simmons & Simmons, to meet Noel, to see LDSI’s offices, and to have a look at their in-house document review application, called LiveReview.

Guidance on the Human Factor in eDiscovery

My first port of call in New York last week was Patrick Burke, Assistant General Counsel at Guidance Software. I did a webinar with Patrick over Christmas (Americans don’t really do Christmas I discover – the last e-mail in on Christmas Eve came from Patrick, as did the first one of Boxing Day) and it was good to meet him at last after the hours of discussion we had about that.

I first came across Guidance Software at the IQPC conference in London last May, when Victor Limongelli (now CEO of the company) gave a talk which impressed because of his sure grasp of the UK court rules. Regular readers will know that I focus closely on the matching roles of rules and technology as weapons to keep the costs down, and it is rare to find any supplier, still less a US one, who articulates that viewpoint.

Basketball pointers for litigation management

eDiscovery Tools is an Australian company which makes software for processing e-mail and other electronic documents for litigation and similar purposes. Its main product is eDiscovery Processor, used by law firms, corporate clients, government departments and litigation support bureaux to extract and index full text and metadata from hundreds of file types and to export the results into a format ready for the majority of litigation support platforms, including FTI Ringtail, Concordance and CT Summation.

It caught my eye at LegalTech last year, and stuck in my mind partly for its obvious power, flexibility and user interface, but mainly because of the demonstrator’s reaction when I asked about an audit feature – an obscure point to do with removed attachments. The chap stared into the distance for a moment and said no, that was not covered – but if I were to ask the same question in a month’s time, I would find that it was.

Why no UK lawyers at LegalTech?

“When does the full LegalTech blog get released” asks a reader, obviously impatient with my chatty discursive wanderings around the subject. I assume he expects a full narrative, starting at Session 1 on Day 1 and ending with an extended analysis of the wider implications for the industry of everything announced, propounded or concluded during the three days, with particular reference to their implications for the UK litigation support industry.

Well, I am sorry to disappoint, but that is not what I go to LegalTech for. You can read all about those things elsewhere, as indeed can I. What you can’t do elsewhere is have all the meetings and the conversations, catch up with the gossip from the UK, the US and Australia, and sniff the breeze. I had four fixed meetings in one morning, but mostly I bumped into people in bars or corridors, hailed or was hailed by people I knew – and, in some cases, by people I did not know who read this blog.

Service with a snarl undoes technology miracles

Good technology must be matched by good people, and it is often the people who let it down. Any technology budget must include a large element for support and training. It is not just the salesmen who need a good client manner.

I was talking at LegalTech to John Turner, Chief Technology Officer at Anacomp who produce and host the on-line review application CaseLogistix. The conversation turned to the cost of delivering e-disclosure solutions. It is not in fact my view that the technology is too expensive – some is over-priced, but the problem it tackles is immense, some of it is near-miraculous in its power, and the alternative – in lawyer hours or abandoned litigation – is hardly cheap.

The main expense, John Turner said, was not the software but the support, adding (with some justification) that CaseLogistix was more user-friendly than most. The support is critical to a successful roll-out and, assuming that the purchase was properly specified in the first place, it is the support which makes for success or failure. It it not just an add-on, but a critical component, without which the technology investment is wasted.

Pocketing the key technology at LegalTech

My new Blackberry helps me organise what is important. It does not decide what is important. The same should be true of e-disclosure applications. Both are an aid to efficient processes, not a substitute for them.

My heading may have brought you here under false pretences. This is not, as you may have hoped, my assessment of the new developments being announced in the speeches or on display at the booths. The key technology so far as I am concerned is in my pocket and on my lap-top.

Feeling at home back at LegalTech in New York

You come to this site, I know, for sharp, incisive, witty stuff about the e-disclosure world, the court rules, the case law, the new developments. There is plenty of that at LegalTech here in New York, but those who do not come here may like a feel for the event, the place and the context.

Legal Technology Awards 2008

The Legal Technology Awards 2008 happened five days and an ocean away – two oceans, in fact, one called the Atlantic and one poured from various bottles on both sides of the Atlantic. Both time and tide mean that my recollections are necessarily hazy, so if you want an authoritative account of who won what, I suggest you go to the LTA’s own site.

Waiting for the Oxford bus at the top of Park Lane at 2:00am on the first morning of February is a sobering experience. Just as well really. Nigel Murray of Trilantic, whose guest I was, had pressed the first glass of champagne into my hand at 6:15 the previous evening. I drained the last at 01:30. In between came dinner (rather better than one expects on these occasions), the awards themselves, and several hours of shouted conversation in a crowded bar.

Anacomp buys CaseLogistix

Anacomp Inc, a large US provider of document and business process management solutions, has acquired CaseLogistix, the evidence and litigation management software company from Nashville, Tennessee.

LegalTech New York 2007

I am just back from New York where the members of the UK litigation support industry migrate en masse at the end of every January to mingle with each other and their American cousins. It was great fun, from the British Brunch early on Sunday morning to the cigar bar late on Wednesday night and all the weighty stuff in between.

It will take a while to filter down everything which was seen and discussed. How useful are the new US discovery rules? What will be the impact of the EU privacy rules? Which US suppliers and providers are coming to Europe and how many will succeed? What new products will do well in the UK market? All this needs applied thought which I will give when my bags are unpacked and my mental clock re-set.

Off to LegalTech in New York

Normal service will be interrupted for a few days whilst I go to New York for LegalTech. The reference to “a few days” means that although I know I am leaving on Saturday, I am not very clear about the return journey. The BA strike has lost me my Wednesday flight and I am rebooked for Friday. As I write, the employers and unions are still locked in overt combat, but their words and postures have the whiff of compromise about them.

There are worse places to be stuck, if it comes to that. The end of every January sees the annual migration of almost the entire British litigation support community to Manhattan for what is justifiably billed as “the most important legal technology event of the year”.

The formal business includes seminars and keynote presentations, including a track called “Advanced Electronic Discovery”. More interesting perhaps is the opportunity to see all the main legal technology products, and especially litigation support applications, gathered in one place. Would-be buyers and those who, like me, help with the selection of litigation software, get the chance to see what is coming next.

More important still is the chance to spend time with all the UK players. Litigation support professionals are a congenial lot, and there are good social, as well as business, reasons for going.

It would be good to be able to say that I will post regular reports from the scene. I will not commit to that, but I will certainly write it all up when I get back.

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