ILTA 2014: Diversification the key for litigation support vendors

September 10, 2014

This is one of a set of posts about the content and the discussion at ILTA 2014 in Nashville. Originally intended as a single post, the result was too long for that and I decided to split them up. See also ILTA 2014 – the context and the logistics.

I remember an ILTA of long ago – 2008, perhaps, or 2009. There were lots of shiny new stands there – small ones on the whole, with unfamiliar names, manned by people I had never seen before. I had a sudden chill feeling, a certainty that most of these fledgling companies wouldn’t last till Christmas. I recall none of their names now.

Many eDiscovery businesses have gone since then, swallowed up by others or just disappeared. A few have arrived, mostly selling litigation support services, though a couple of new software companies have defied predictions (mine included) and seem to be thriving through a combination of good product and good marketing.

Eddie Sheehy of Nuix looks at the future of litigation support vendors in the context of ILTA 2013 in his article 5 pathways for successful litigation support vendors in 2014.

The number of customers is not growing, he says, so companies can only increase their market share at the expense of others. Apart from obvious things like a record of solid competent performance at good prices, LSVs need to add value by providing new and collateral services. Read the rest of this entry »


ILTA 2014 – the context and the logistics

September 8, 2014

This post is about ILTA the event – the organisation and the experience of being there. I will write separately about the legal technology subjects which came up in the sessions and in discussion. August 1914 is my starting point for August 2014, allowing me to make comparisons between the book I am currently reading and the organisation of ILTA. If you lack the time and the patience for my comparison between the preparations for war and the planning for ILTA, jump down to the heading The logistics of ILTA.

August1914My book for the journey was August 1914 by the respected American historian Barbara Tuchman. I know how the story ends, not least because I have read the book twice before, but Tuchman manages to invest the familiar with an atmosphere of suspense as the decisions are made – to advance, retreat or dig in, to march this way or that; you read it with hands metaphorically over your eyes as pig-headedness, personal animosities and lack of intelligence (in both senses) lead inexorably to four years in the trenches, with most of France’s coal and iron production left in German hands.  Many of the mistakes had been made long before the war – mistakes of diplomacy, of judgement and, most particularly, of procurement and supply as the Allies prepared to fight the last war; generals are always getting ready to fight the last war.

Armies in 1914 to lawyers in 2014

This is not, as you may think, a precursor to an analysis of the parallels between the armies of 1914 and the lawyers of today, much as I like that kind of example. You do not have to look far to find them. French generals refused to discard the pantalons rouge which made soldiers an easy target; they disdained heavy artillery as being inconsistent with the élan expected from a philosophy which knew only of attack, and they made no provision for entrenching tools for the same reason – only defenders needed to dig in and defence was not on the agenda; newfangled aeroplanes were rejected. Meanwhile, the British Liberal government invested reluctantly in Dreadnoughts but declined to spend any money on dry docks big enough for them or on shore defences for naval bases. The parallels with the way some law firms prepare for doing business in 2014 are obvious – predictive coding anyone? Read the rest of this entry »


Browning Marean: the tributes pour in

August 26, 2014

My article about the late Browning Marean Goodbye old friend has attracted several comments from those who were touched by his contribution, personal and professional, to them and to eDiscovery. The English judge HHJ Simon Brown says Browning was “the Global Professor of eDiscovery”.

The recurring themes include the encouragement which he gave to others and the word “laughter” and its synonyms. Herb Roitblat of Orcatec said in a tweet:

It’s good to see that he treated many others as well as he treated me, which was very well.

I knew Browning only a short time compared with others like Tom O’Connor and Craig Ball – my particular privilege was to see him on tour in nearly every jurisdiction in which eDiscovery is required, but they knew him for years. Craig Ball’s article Browning Marean 1942-2014 has been extended since I first recommended it and has similarly attracted many comments.

A lovely post by Tom O’Connor on the LTN site, Browning Marean: a remembrance gives us personal recollections going back to the dawn of electronic discovery. Monica Bay has given her tribute in Browning Marean loses battle with cancer. Both of these LTN articles require registration.

Ralph Losey called his article Browning Marean: the life and death of a great lawyer, the title reminding us that Browning was a lawyer first and an eDiscovery expert as a consequence. Ralph Losey added a tweet today saying that Browning was:

the first big firm attorney to use senior status to specialize in e-discovery and training. Helped his firm, DLA Piper

…while Michael Arkfeld reminds us that Browning used to say of DLA Piper that:

if they knew how much fun I was having, they would fire me.

US disputes lawyers and those who provide discovery services to them are a tough lot, with little room for sentiment in their professional lives. If the industry is in fact softer and nicer than its professional image sometimes implies, then that is in part due to Browning’s influence. It has certainly appeared in the reactions to his death.

There is a set of my photographs of Browning here.

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Goodbye old friend: farewell to Browning Marean

August 24, 2014

BrowningDublinBrowning Marean of DLA Piper US died a couple of days ago. He had spent much of the year undergoing treatment for oesophageal cancer. When we spoke on Skype recently (oh so recently) he was excited at events coming up in Dublin and Prague which would be the first time I had seen him for months. At ILTA in Nashville last week, his many friends heard of his sudden readmission to hospital and stopped each other in the corridors to ask for the latest news. No-one else in eDiscovery – no-one else I know anywhere – could get the level first of concern and now of grief as he has had.

Craig Ball wrote a warm appreciation of Browning which you will find here. I have put up on Flickr some of the many photographs I took of him in the places we visited together – the US of course, but also London, Dublin, Hong Kong, Singapore, Sydney, Prague, Munich, Macau and, of course, Oxford. He would ring me up with his flight arrangements and make me promise to “break bread” (one of his warm phrases) with him – not that I needed encouragement. Even now, when I get out of airports in distant places, I still expect him to be the first person I see at breakfast on the first day of events, if not in the bar the evening before.

I was introduced to Browning Marean at a party in London in, I guess, 2007, by Jonathan Maas, then at DLA Piper and now at Huron Legal. I can picture the setting, the place in the crowded room, the circle of people pleased to keep the company of this man with a Father Christmas twinkle, the one-liners of a stand-up comedian and the serious interest of an eDiscovery expert. I had recently reached the conclusion that I could not talk and write about UK eDisclosure without understanding what went on in the US – how else could one rebut the frequently-met argument that “eDiscovery is something Americans do, and look what expense it causes” – and Browning was to become my guide. Read the rest of this entry »


Could an English court require lawyers to make a video about their disclosure obligations?

August 12, 2014

I recently wrote an article about the Court of Appeal’s decision in Denton which I called Letting the punishment fits the crime as Mitchell gives way to Denton. As the title implies, I suggested that Denton took us some of the way back to Lord Justice Jackson’s intentions and that the courts were now better able to exert discipline in a way which had regard to Jackson’s original intentions. I cited Gilbert & Sullivan’s Mikado as a model for the idea that the punishment should fit the crime.

A US judge has taken this one step further. Faced by a party whose conduct of eDiscovery involved taking every point and other activities which lost sight of the “just, speedy and inexpensive” requirement in Rule 1 of the Federal Rules of Civil Procedure, the judge focused on the value of educating the delinquent lawyers. He required them to make a video explaining the proper way to manage eDiscovery. The story is well told in this article from Above the Law which annexes the judge’s order and sets out the more quotable passages in the ruling.

One is a generalised complaint about the conduct of eDiscovery which is worth repeating. It reads:

Discovery — a process intended to facilitate the free flow of information between parties — is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught…. Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding.” Read the rest of this entry »


Comparing like with like and keeping eDisclosure fears in proportion

July 30, 2014

“E-disclosure is about being clever with the way you do document reviews. It’s about picking the right search terms, using a good provider and having a proper hosting platform.”

This sensible quotation, from RPC disputes head Geraldine Elliott, appears in an interesting article in The Lawyer of 28 July headed Special report: eDisclosure – trials and tribulations.

To my eye, the article includes some implied comparisons which paint a misleading picture: the overall cost of using one technology must be compared with the overall cost of using another or of using none, including the cost of time spent or saved; return on investment must include savings and strategic and tactical benefits, not merely expense over the life of a case; a few extreme examples of egregious disclosure failures do not justify disproportionately expensive disclosure exercises in all cases – that was the American way, and we want none of it here.

With one exception – confusing the word “sanctions” (as in “punishment for default”) with the consequences of that default, namely the entry of a default judgment for the sum claimed, I do not really disagree with the components of the article. Strung together, however, the overall impression is perhaps not quite as its separate contributors intended. As it stands, it reinforces the perception that eDisclosure is simply threatening, technical and expensive. It may be all those things, but lawyers who just conclude that new technology is too expensive without looking at it, who omit half the equation when comparing costs, and who read only the cases in which people screwed up, are unlikely to develop a rounded view.

The article includes interviews with people who are engaged in eDisclosure exercises, and includes discussions about the rule changes and case management strictness, and the different ways in which firms are managing electronic disclosure, as well as some references to cases which have not gone well for at least one of the parties.  I focus here on a couple of areas which I would have expressed slightly differently. Read the rest of this entry »


Letting the punishment fit the crime as Mitchell gives way to Denton

July 21, 2014

What was over in moments, added a word to the law’s dictionary, led to countless spin-off cases and applications, cost millions in legal fees, ended reputations and, having left its mark, disappeared from the scene?

There is are curious parallels between “Plebgate” and the judgment called “Mitchell”, either of which could be described in this way. The original incident, the only event with a “-gate” suffix which actually involved a gate, was over in seconds; Andrew Mitchell lost his Ministerial job, one policeman went to prison, others were disciplined and a rotten branch of policing was given a long-overdue shaking; at least two libel cases ensued and the whole consequent series of investigations and civil and criminal claims will keep many lawyers in claret for long after we have forgotten both Plebgate and Andrew Mitchell.

It took Lord Dyson a few minutes rather than seconds to deliver the Court of Appeal judgment known as “Mitchell”, and its consequences have been similar to Plebgate. Millions of pounds have been spent since, in complying with the regime which the judgment spawned, in arguments and applications resulting from it, and in bringing claims against lawyers whose every minor default became a cause of dispute. It is suggested that “Mitchell” was the last straw for some solicitors, already hard-pressed to break even. Court lists were flooded with Mitchell-related applications. A spirt of co-operation, or at least of give-and-take, between solicitors, which had always oiled the procedural wheels, disappeared in a new climate in which lawyers felt it their duty to take every point in case they could “Mitchell” their opponents, and cases which could have proceeded toward trial were delayed as the “Mitchell” point was contested; one involved a delay of 46 minutes in serving a list of documents. Read the rest of this entry »


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