Getting back to the e-Disclosure day job

November 3, 2010

Although it may seem that I spend most of my time in the departure lounges of the world, travel is a relatively small element of a typical month’s work. I am back to the meetings, the platform and media opportunities and the writing which fulfil my obligation to find out about e-disclosure problems and solutions and to try to match the one with the other. The travel informs that, but it is not an end in itself. I take the opportunity to summarise what the ends, and the means, are so far as I am concerned.

Douglas DC3Some semblance of normality descends after a month which kicked off with the launch of the UK eDisclosure Practice Direction and included visits to Washington, Toronto and Singapore. It would be easy to get the impression that travel is my main activity, but last month is, fortunately, not representative. I clocked up 27,936 air miles (the distance around the equator is 24,783 miles), and two of the conferences involved a fair amount of activity – planning in advance, taking part in sessions, and writing them up afterwards. This is, nevertheless, an activity which is ancillary to my main role.

Many years ago, I did a stint in Uzbekistan for an EU-funded project. One of the legacies of that is the deep hatred of the whole EU institution which you may have detected – the waste, the expensive, self-serving bureaucracy, and the very strong feeling that a large group of elected representatives and appointed officials have created an interfering monster whose primary function is to give them lucrative employment. The other legacy is that, for years afterwards, many people assumed that working in Tashkent was my main occupation, whereas it was in fact run in parallel, and only briefly, with litigation software development and consultancy work in the UK.

The same is true of the trips I do now – they are important, interesting, non-trivial in time terms, and allow a two-way traffic in understanding e-discovery problems and solutions, but they are not my main function. They are not compatible with writing, for which I require absolute silence, no distractions and a good supply of coffee and cigarettes, none of which are available on aeroplanes. Read the rest of this entry »


Turning e-discovery news and views into a community of interest

September 21, 2010

Those of us who work in e-discovery / e-disclosure get better and better at passing information and views between ourselves.  Web sites, blogs and Twitter allow us to keep up with developments – new products, company news and cases – in a market which changes all the time. Improvements in the mechanics of information delivery do not make it easier for new readers (which is the audience which matters) to understand it all. Can we turn this stream of information into a community of interest?

The word “community” has been hi-jacked by the woolly thinkers of the soft left. Private Eye runs a regular column pillorying those who write of meaningless “communities” whenever two or more people have some characteristic in common.  The expression “community of interest” has a meaning worth keeping, however, and is correctly used (and hard to replace) when different groups have common ground. The one in which I am interested is the loose assembly of lawyers, their clients, judges and technology providers who aspire to the proportionate use of electronic documents in litigation. That aspiration is purely notional in many cases, mainly because many of the players do not fully understand what the others need or can offer.

This article began as a way of covering many apparently disparate pieces of news or information in one place. As I wrote it, themes began to emerge which mapped on to some of the conversations which I have with lawyers seeking a quick ramp into the broad options which they face when e-disclosure becomes inevitable. We who have grown up as the industry grew up throw names and terms at each other, as if the audience shared the building-blocks of knowledge. They do not. Running several stories together may make for a long article, with loops and digressions as I expand on things which seem obvious to industry regulars, but those to whom it is all new may find that helpful.

One of the links which I intended to pass on anyway happened to be an interview in which Richard Susskind argued for better use of social media and for the development of a community of interest between the participants in the wider legal IT industry. That neatly tied in with my plan to base this article round a series of tweets, and suggested by extension that Twitter provides a ready-made core for such a community. It does so already for those on the inside. We need to invite the users in. Read the rest of this entry »


E-Disclosure and E-Discovery at home and abroad

September 14, 2010

I have given my first law firm talks since the Edisclosure Practice Direction became official and have started talking to my sponsors about its implications for them – the questionnaire gives them a useful and early role, if they are ready to give help to lawyers who need it; the speakers for my international judicial panel for the Masters Conference in October are booked; other autumn conference plans are moving forward. The new season is well under way.

I will come on to these things in a moment, including a quick digest of some points from the PD which may not be immediately obvious. They are not the only reason why there has been a gap since my last article: I have been off on my summer holidays – well, it was a long weekend really, and not that long, just half a day tacked onto a weekend before I had to get back for an interview. Maybe next year.

Orford Castle and ChurchMasts at OrfordPagodas at OrfordWe have been at my mother’s house at Orford on the Suffolk coast.  The word “defensibility” means something rather more tangible in Orford than it means in ediscovery.  Orford Castle was built between 1165 and 1173 and its keep dominates the skyline still. On Orford Ness, a narrow strip of land between the River Alde and the sea, secret military tests were conducted from the 1930s onwards, first on radar and later on cold war weaponry, for which purpose the curious Pagodas were built. It was also the home of a post-war over-the-horizon radar station for an Anglo-American system called Cobra Mist, abandoned in 1973. Orford Ness lighthouse may have been the source of the lights reported in the 1980 Rendlesham Forest UFO sightings, and attributed at the time to triangular flying objects – the only known example of someone demonstrating their technology and not following it up with a sales call.

This was a brief hiatus before activity picks up on both domestic ediscloure and international ediscovery. The UK’s Edisclosure Practice Direction comes into force on 1 October, and I have given my first law firm talks on the subject to one of those good regional firms which, I have suggested, have everything to play for in document-heavy litigation. That type of work used to require large teams and other resources available only to the biggest firms. The practice direction should see an end to the “brute force and ignorance” approach to edisclosure; the cudgel should give way to the stiletto, as firms learn to use the rules and the technology to narrow the disclosed documents as early as possible down to those which matter or which matter most. The practice direction requires [paragraph 6 (2)] that technology should be used in order to ensure that document management activities are undertaken efficiently and effectively. You do not need to be a big firm to handle large volumes, just aware of the tools which exist and (just as importantly) how to use the rules and the cases to meet the clients’ objective – which is not usually disclosure for its own sake. Read the rest of this entry »


Welcome to Clearwell as new sponsor of the e-Disclosure Information Project

August 6, 2010

It is a great pleasure to welcome Clearwell Systems as the latest sponsor of the e-Disclosure Information Project. Given Clearwell’s present standing in the eDiscovery market, it is hard to realise that it was founded as recently as 2004 and had therefore been going only three years when I set up the Project.

How does one measure a player’s “standing in the eDiscovery market”? I do not purport to be an analyst, so my use of the word “standing” implies no comparative statistics or detailed research. One can look at Clearwell’s “Strong positive” rating from Gartner in 2009, and its “Top 5″ supplier ranking from Socha-Gelbmann in 2008, an the logos of its users on its home page – BP, Microsoft, Toyota, Walmart, FedEx and others – act as kind of reference, but my sense of their standing does not derive entirely from these things either. Nor do I get it just from the references which Clearwell attracts – a quotation from KPMG’s Paul Tombleson referring to the “simplicity and speed at which Clearwell processes data” appears on its home page, and Legal Inc’s web site carries an article called Legal Inc and Clearwell – cutting complex projects down to size .

What I am talking of is a less tangible sense than one gets from such hard factual sources. Clearwell gets mentioned a lot, amongst those who are potential users and amongst rivals, and in a way which conveys ubiquity; for the benefit of non-Latinists, that means they turn up everywhere. This goes beyond their appearances on product selection short-lists. Clearwell is, in addition, a regular and informed commentator on the market, with an active blog, a range of useful white papers, and tweets which do more than merely promote its own products. They also support TREC, the Sedona Conference and lead several EDRM projects. Read the rest of this entry »


Epiq launches European document review service

July 16, 2010

Epiq Systems, owners of document review application DocuMatrix, have launched a new document review service based in its new offices in London following the success of the US service. The press release is here.

It is in a sense otiose for me to give my views since they are already set out in the press release, where I am quoted as saying:

Epiq’s document review service will appeal to a wide range of law firms and corporations. Those with existing expertise in electronic disclosure can take on additional work even if their in-house teams are already stretched; those who have no in-house resources and who might otherwise have to pass up work (or take it on with inadequate skills and staff) can delegate the expensive review stage to experienced teams. The two things which are particularly attractive about the service is the emphasis on quality control and reporting, and the fact that it is product-neutral despite the fact that Epiq is itself a well-known software provider. Read the rest of this entry »


Welcome to H5 as a sponsor of the e-Disclosure Information Project

March 14, 2010

It is a great pleasure to be able to put up the logo of information retrieval company H5 as a new sponsor of the e-Disclosure Information Project. I described H5 in a recent article as “a cross between a commercial information consulting business and a research university” one which, I said, lays as much stress on its high-calibre people as it does on the services and software which comprise its offering to clients.

My connection with H5 goes back to my first foray into the US litigation world, at LegalTech in 2007. I went there because it had become obvious that a half-understanding of US e-discovery was acting as a brake on the UK use of electronic means to tackle electronic documents. The UK alternative was simply to ignore the fact that 90% of communication between businesses is electronic, and to take refuge in the assertion that electronic discovery was something Americans did, and did both extravagantly and expensively. Whilst we still suffer from that amongst the backwoodsmen of UK litigation, we are eroding it and replacing the image of US providers as all “Texans with tall hats” (as one of them once put it to me) with the reality of intelligent people trying to solve much the same problems as our own. Read the rest of this entry »


A proper welcome to Applied Discovery as a new sponsor

March 2, 2010

I promised a proper welcome to Applied Discovery when I put up a short post on 16 February to draw attention to the arrival of their logo. These Welcome posts are generally the only occasion when I invite collaboration on what goes into a post – generally, except where I am unsure of my facts or my authority to mention something, I write what I like. A first post to describe what a company does warrants co-authorship and, with Rob Robinson as their Senior Director of Worldwide Marketing, it seems daft for me to invent my own description. What follows is his:

Founded in 1998, Applied Discovery is a global leader in the delivery and management of electronic discovery services and support.   Part of LexisNexis since 2003 (a member of the Reed Elsevier Group), Applied Discovery leverages an extensive portfolio of resources, relationships, and research to help clients solve today’s and tomorrow’s discovery challenges.  Simply stated, Applied Discovery delivers multinational collection, analytics, processing, review and production services for law firms, corporations, and governmental entities engaged in audits, investigations, and litigation. Read the rest of this entry »


E-Discovery and Judicial Involvement in Australia

March 1, 2010

Project Counsel is the sister site to The Posse List, both run by the ubiquitous Gregory Bufithis. Project Counsel’s web site carried an article on 25th February with the title In Australia, e-Discovery and enhanced judicial involvement come of age . That is a high ratio of interesting key words to me, with “Australia”, “e-Discovery” and “enhanced judicial involvement” all being hot topics.

The article summarises a look taken by Australian law firm McCulloch Robertson at the development of active court involvement in the management of cases generally and electronic discovery in particular. It includes many elements in common with those which we either have or are promoting in England & Wales following the Jackson Report on Litigation Costs. The general aim is the reduction of the cost of litigation and minimising unnecessary delays. It is some consolation to me, following the recent side-lining of our draft e-Disclosure Practice Direction and ESI Questionnaire, that the introduction of the equivalent in the Federal Court of Australia (originally Practice Note 17, now CM 6) was as long drawn-out and painful a process as we are finding it here. Australia got there in the end, a little over a year ago. Our draft Practice Direction took account of the arguments and difficulties experienced in Australia amongst other places.

Doubtless we will get there in the end, and catch up with not just Australia but Singapore and Canada, both of which introduced also new e-Discovery rules in 2009. We used to lead the world in such things, but that was true also of cricket and economic prosperity. Read the rest of this entry »


Australia at the centre of the discovery world

June 28, 2009

The default map of the world shows Britain in the middle and near the top, with Alaska at top left and New Zealand at bottom right. Perhaps that is because Europe invented the Greenwich Meridian; maybe it is a legacy of Empire or a conspiracy of cartographers (the phrase is Tom Stoppard’s);  possibly the maps in Australia are centred on Canberra, with Iceland and Cape Horn as their left and right extremes. By any measure, anywhere else is a long way from Australia. Its influence in the world of electronic discovery is disproportionately large. Read the rest of this entry »


The anatomy of practical disclosure and the body of evidence

June 4, 2009

Having not previously opened my doors to guest contributors, I now do so for the second time in a week. Legal Inc, who are amongst the sponsors of the e-Disclosure Information Project, held a workshop with the medical title shown above at IQPC’s  Information Retention and E-Disclosure Management Conference on 19 May. I was in Orlando at CEIC 2009 and asked Andrew Haslam to write it up for me. This is his report: Read the rest of this entry »


Autonomy panel at LegalTech points to proactive clients – and lawyers

February 24, 2009

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. Read the rest of this entry »


E-Disclosure Taster Menu in Bristol

February 21, 2009

I went down to Bristol last week with a group of electronic disclosure suppliers at the invitation of the Western Chancery & Commercial Bar Association. The aim, as in Birmingham last year, was not just to talk about electronic disclosure, but to illustrate it by showing and describing a range of applications and services

Bristol used to be Britain’s second city. In the 18th Century it grew prosperous on the triangular trade which took cloth and iron goods to Africa, slaves to America and tobacco, and sugar and rum back to Bristol. In 1841 the Great Western Railway connected it to London and, in an early example of joined-up commerce, you could travel on GWR trains and GWR ships from London to New York. Its relative prosperity declined as other places boomed and as different industries – ship-building, tobacco, cotton – had their heyday and fell away. There is more industry in the region than one sees from the M4 – I flew over the Severn Estuary on my way in from New York at dawn a couple of weeks ago and noted the miles of industrial zones from Avonmouth Docks down towards Bristol.

All that industry, together with property-related work from the West – Bristol is the first place of any size as you come up from Cornwall or out of Wales – has supported the growth of a strong legal and professional services business. Every other legal magazine in the late 1980s seemed to profile Bristol. Its population of around 400,000 makes it now Britain’s tenth city preceded by London, Birmingham, Leeds, Glasgow, Sheffield, Bradford, Liverpool, Edinburgh and Manchester. It can take as little as 90 minutes to get to London by train.  There are some large barristers’ chambers in Bristol and one does not get the impression that work is in short supply. Bristol is one of ten cities in Britain with a Mercantile Court, that is, a court with a specialist commercial list and judge or judges ticketed to hear mercantile cases.

All very interesting you may say, but this site is meant to be an information resource on electronic disclosure, not a local history, travel guide or Chamber of Commerce directory. Indeed, but disclosure comes with litigation; litigation follows industry and business; and the ability to win commercial litigation work from any region depends on the quality of local law firms and chambers, and on their ability to stop the work from heading to London. It ought to be possible, in fact, for the combination of legal skills, good transport links and an efficient Mercantile Court not just to stem the flow to London but to reverse it. The sixty or so barristers and solicitors who turned out to listen to us presumably want to draw work into their region. Read the rest of this entry »


Kazeon to host judicial e-discovery webinar

February 11, 2009

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. Read the rest of this entry »


Hanzo Archives show web archiving at LegalTech

February 11, 2009

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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Autonomy Early Case Assessment at the Ritz

November 17, 2008

Most of my speaking engagements are of the nuts-and-bolts, cradle-to-grave variety where I speak for a couple of hours about the issues raised by electronic documents and about how proper use of the Civil Procedure Rules, coupled with an understanding of the available technology solutions, should give parties and the courts the means to arrive at answers which are proportionate to the case.

People can read the rules for themselves once pointed in the right direction. The technology, and the problems which it addresses, need a more visual approach, and I am increasingly getting the opportunity to use snippets of visual displays from specific products to illustrate generic points. The aim is not to try and display the whole range of solutions from the left hand side of the EDRM diagram to the right, but to use a picture to say a thousand words about a sub-set of it, to shine a torch into a previously dark corner in the hope that it illuminates the wider picture.

As a change from these points of detail, I am sometimes asked to speak about the broader context, to give a kind of “state of the nation” talk which pulls together some of the threads. One such opportunity arose last week when Autonomy invited me to be the guest speaker at a lunch at the Ritz. Read the rest of this entry »


Birmingham barristers see e-disclosure applications

October 29, 2008

A seminar in Birmingham allowed an audience of lawyers to see some of the applications used to handle electronic disclosure topped and tailed by some explanation of the litigation context. It was not just a trade show but a visual way to convey that the solutions are gaining on the problem

The e-Disclosure Information Project originated in Birmingham when Mark Surguy of Pinsent Masons introduced me last summer to HHJ Simon Brown QC, a designated Mercantile Judge at the Birmingham Civil Justice Centre. We brought it back there at the beginning of October when Edward Pepperall, a commercial barrister at St Philips Chambers, arranged for the Midland Chancery & Commercial Bar Association to invite us to give a reprise of a talk he had heard us give to solicitors a few months ago.

Ed Pepperall’s reasoning was that barristers are increasingly getting involved in the procedural aspects of Case Management Conferences. Birmingham may be ahead of other places because the judges there are known to practice the “active management” which the overriding objective requires and in which the parties are expected to take their part. The Commercial Court Guide, on which the Mercantile Court Guides are based, emphasises that the CMC is not just the old summons for directions. Judge Brown says of the CMC that is a “business meeting”.

If barristers are engaged at the CMC then they need to be aware – preferably well before they go in, and not just in the corridor outside – what the court will expect them to cover. Hands up all those who know about the obligation to discuss electronic sources of documents in Paragraph 2A.2 of the Practice Direction to Part 31 CPR. I thought not. What about Digicel (St Lucia) v Cable & Wireless? We did not mention that, because it had not been heard then. It has now, and we can expect many more orders requiring parties to discuss their sources and to take difficulties or disagreements to the judge. Read the rest of this entry »


Discovery of Australian and US connections

October 19, 2008

The purpose of the e-Disclosure Information Project is to assimilate and disseminate information about electronic discovery / disclosure. As you may conclude from my silence on this site for a fortnight, I have been doing more assimilating and less dissemination recently. Apart from one article part-drafted on the floor at dawn between flights at Kuala Lumpur airport, my output has been zero. The inputs, however, are considerable, and it will take a while to record them all. This article is a summary which will be followed by more specific articles. Its theme is collaboration between the thought-leaders in those common law jurisdictions which rely on the exchange of electronic documents in the search for justice.

KL was a staging-post en route for Sydney, where I was booked to speak at the Ark Group conference Preparing your Organisation for eDiscovery. From there I flew to Washington for the Masters Conference. My subject in Sydney was Responsibility for electronic disclosure, which surveyed every level from the state’s duty to provide an efficient forum for commercial disputes down to the individual duties of lawyers, clients and judges to manage cases and the documents needed as evidence in them. The main draw in Washington was a keynote speech by US Magistrate Judge John Facciola which took the same theme to a very much higher level, as I will report separately. Read the rest of this entry »


Some conclusions from Socha-Gelbmann

August 20, 2008

As the dust settles on the 2008 Socha-Gelbmann Survey, it is perhaps useful to pick out a couple of the conclusions which particularly affect UK corporations, law firms and suppliers. As I have reported elsewhere (Project sponsors ranked by Socha-Gelbmann) those who sponsor the e-Disclosure Information Project were well represented in the rankings tables, with Anacomp, Autonomy Zantaz, Epiq Systems, Guidance Software, LexisNexis and Trilantic all appearing in one or more of the charts (the links, incidentally, are to their respective press releases on the subject).

George Socha and Tom Gelbmann have written a commentary on the market as it appeared to them following this, their last survey in this form. Commentary on commentary does not necessarily add value, but I highlight what they say about analysis, about a perceived shift from services to software and about staffing up to enable law firms to meet the challenges and take the opportunities which exist in this market. Read the rest of this entry »


A big culling exercise on holiday

August 20, 2008

After a while at this game, one begins to see parallels with the EDRM stages in areas of life which have nothing to do with documents. I am just back from a week in a remote cottage in Cornwall whose garden had been neglected for a year. In EDRM parlance, its document management was a mess and it needed a good cull before it was fit for review. Read the rest of this entry »


FTI Consulting to acquire Attenex

June 11, 2008

As I write this (kindly tipped off by the ever-alert Jonathan Maas of DLA Piper UK LLP) FTI Consulting is running a Webcast about its proposed acquisition of Attenex Corporation announced yesterday. The acquisition is subject to the relevant US regulatory processes.

No time, alas, to listen, nor to think through the implications for the UK market, but you may like to read the press release. The Webcast is (for now anyway) here.

The press release rightly emphasises that the addition of Attenex to FTI’s acquisition of Ringtail means (in their words) that FTI “now owns key proprietary technology for each crucial step of the Electronic Discovery Reference Model (EDRM), providing clients with a single source, industry leading solution”.

The slide supporting the Webcast illustrates this. The processing stage will be covered by Attenex Patterns® eDiscovery software which (their words again) “automates data processing and provides powerful visualization tools for quickly analyzing massive amounts of electronically stored information (ESI)” which will be more closely integrated with Ringtail (there is already software designed to move data between the two products), with FTI’s consulting services as an over-arching link.

Both products can be hosted or installed on site, allowing corporate and law firm customers to use the same technology whichever set-up suits them – which may be different for the same customer on different cases.

More follows.


Throw it over the wall Discovery

October 29, 2007

Both the legal and IT worlds have technical expressions and terms of art which tend to exclude outsiders. Litigation support and e-Disclosure have feet in both these camps and a reasonable share of terms which do not mean much to those not involved.

I came across an assertion in the Information Governance Engagement Area to the effect that “the days of traditional ‘throw it over the wall’ (TIOTW) e-Discovery are numbered”. Not just a catch-phrase, then, but an acronym and a link to a definition – Word Spy says it is a verb – “to pass a project or problem to another person or department without consulting with them or coordinating the transfer in any way.” Read the rest of this entry »


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