Evidence, privacy and proportionality at Lawtech Europe Congress in Prague

January 30, 2014

I have no particular ambition to write up events as soon as they finish. Distance lends perspective, and anything worth reporting at all will be as valuable a couple of months later. The Civil Procedure Rules of England and Wales gave me enough to be getting on with at the tail end of last year and I only now turn to what was covered at the Lawtech Europe Congress in Prague, the second one organised there by Frederick Gyebi-Ababio.

My own interview filmed on the day gives a summary of why it is important to hold events in central Europe, and correspondingly important for eDiscovery people be there. Prague sits in the middle of a big region and one which is full of potential, not least because of its trade with the US. It is important for businesses and those who advise them to understand the expectations of US discovery, both because they have to face it and because it will become increasingly necessary for these jurisdictions to adopt their own discovery rules – as I say in the interview, a jurisdiction which establishes the content and validity of documents by notarised prints or screenshots has some catching up to do.

This is not just because of litigation – we see a activity by regulators from the US, the EU and within each region, all of whom wants to know what the story is. The story lies in the electronic evidence, and whilst much of the interest perhaps still lies in criminal investigations, civil eDiscovery cannot be avoided. Those who provide professional and technical services will cede the ground to the big four consultants, who are already there for other reasons, if they do not register their presence to some extent.

Paul Salazar of Siemens gave the keynote address, sponsored by Exterro. He ranged broadly over the duties of internal counsel, describing the processes which they must develop in order to anticipate and manage eDiscovery demands.

The emphasis on process can easily obscure the importance of data as evidence. Yuval Ben Moshe of Cellebrite opened the show with a panel whose focus was eDiscovery and the rise of evidence on mobile devices. He had as his panel members Patrick Burke eDiscovery Counsel at Reed Smith, Jo Sherman of edt. and Damian Murphy, an English barrister establishing his own chambers specialising in eDisclosure.

2013-10-E-4236Damian Murphy, Jo Sherman, Patrick Burke, Yuval Ben Moshe

Between them they gave us a good balance between the technical components and the need to focus on what really matters. It is not necessary for proportionality to be enshrined in the rules to get the idea that resources must be proportionate to what you are trying to achieve.

My first panel covered the relationship between scope, method and cost – how much do you need to collect, what is the best way of doing it, and how do you keep the costs within reasonable bounds whilst doing a good job? Read the rest of this entry »

Speeding up police forensic investigations and reducing bail periods

June 7, 2013

AccessData has been working with the UK’s Royal Military Police Service Police Crime Bureau to speed up their forensic investigations. In addition to the obvious benefits in efficiency and reputation, there are pure cost gains.

The UK government has recently been trying to reduce the time and expense of dealing with “the law” in its various forms. To those of us whose primary focus is civil litigation, this government intervention has taken the form of restraints on costs, engineered by strengthening judicial control of case management, by limiting recoverable costs and by an express emphasis on proportionality. The reforms have been accompanied by cuts in civil legal aid and in front-line court staff, with obvious implications for the efficient working of civil justice.

At the same time, there are battles going on about the right to bring judicial review proceedings and about the availability of legal aid in criminal proceedings.  There has been much criticism of the proposals on broad grounds to do with access to justice, but much of the attack has been based on the Ministry of Justice statistics and on the mismatch between the government’s alleged targets and those who will suffer by the changes.   Critics (of whom I am one) say that, quite apart from any arguments about justice or fairness, the alleged savings seem to take no account of the consequential costs of the changes – the hearings prolonged because of unrepresented parties, the actual and social costs of the anticipated increase in convictions, and the other things which flow when the  system goes into paralysis.

Meanwhile another and more specific debate is going on about the length of police bail, something which has attracted attention as a result of police activity against high-profile figures involved in phone hacking, and in unacceptable sexual activities alleged against faded celebrities. Many of the suspects have had their houses raided at dawn, something else which has excited adverse comment as we question whether a senior newspaper executive or 80-year-old BBC “personality” is going to do a runner if given notice of impending arrest. We agitate on their behalf when they are bailed for months or even years, with the stigma and the pressure hanging over them whilst the police proceed with their procedures. Read the rest of this entry »

CY4OR signs partnership agreement with Guidance Software for EnCase Enterprise

December 14, 2011

UK-based forensics company CY4OR has reached an agreement with Guidance Software under which CY4OR will offer and support Guidance Software’s EnCase Enterprise Platform. This is a logical development for CY4OR, building on their nine-year history of forensic investigations and collections work which has already brought them into corporate electronic disclosure with a website dedicated to that part of their work.

A glance at the information page for EnCase Enterprise will quickly show why CY4OR has gone down this route. The passage about ….

a proven, cost effective method to investigate HR related matters (such as corporate policy violations, harassment complaints or computer misuse allegations), IP theft, fraud, computer security incidents and more

… ties in with and extends CY4OR’s established skills in this area of forensic investigation. The ability to collect data from servers and workstations on the corporate network without disruption to the business is important for both cost and time reasons – investigations of this kind almost invariably require urgent, if not instant, attention, but business must go on whilst it is happening.

Related as I am to both companies through their respective sponsorships of the eDisclosure Information Project, I look forward to hearing how the partnership goes and will report back when it has had a chance to bed down.


Epiq Systems White Paper: From Start to Finish – what actually happens to my clients’ data?

November 28, 2011

Anyone describing their services to a prospective client has a limited bandwidth (measured in time, concentration and the amount of detail which can be imparted and absorbed) available to them and, in focusing on the primary features and benefits, often skips the practical matters which will arise. The builder quoting for your attic room will concentrate on the design and the materials, and not describe the months of dirty boots going up and down your stairs; your property lawyer will not go into details of packing, removals and services disconnection when describing the conveyancing process; the surgeon will spare you the gory details of scalpels and clamps which will be used in your impending operation.

This is not necessarily a matter of concealment – to the expert doing this sort of thing all the time these minutiae are inevitable, and describing them seems to add little to the client’s expectations. Much the same can happen when an eDiscovery provider is describing its services and software: the focus is on the business case, the functionality and the output, with the front end of the process reduced to terms of art like “preservation”, “custodian” and “processing” which do not necessarily mean to the audience what they mean to the vendor.

I come across this when I speak to law firms. Those who invite me in to talk to them have very often already seen more than one demonstration, and have varying degrees of understanding and acceptance of both the need and the benefits of engaging one of those whom they have seen . A recurring question, however, is “What actually happens to my clients’ data when I instruct a software and services provider?”. They envisage, perhaps, the day when they will ring up a client and advise them that the disclosure in their case should be managed electronically. “All right”, says the client, perhaps, “What happens now?” Read the rest of this entry »

The KPMG Preservation Order: it couldn’t happen here….I hope

November 27, 2011

In writing about the US case Pippins v KPMG (see KPMG Judge Kicks the Sisyphean Stone of Proportionality Back Down the Hill) I made a point of emphasising that “one must… be careful up to a point in commenting adversely on rules of another jurisdiction”. I also made it clear that my comments were not directed at the judge but at the rules as they have developed.

Mine was therefore a policy view rather than a taking of sides, a conclusion that if the Magistrate Judge was correct (as to which I have no informed view) then my outsider’s opinion of the legal context was that, as Dickens’ Mr Bumble put it, the law is an ass. My support for the position taken by the amici who have joined in the appeal was based more on sympathy with their broad propositions than with the facts of the case. I want them to to be right and to win because I entirely buy the idea that decisions like this will cause lawyers “in an over-abundance of caution [to] feel obligated to follow the broader standard preservation adopted by any court” as one of the briefs puts it.

As one might expect, the case has aroused strong views, none clearer than those expressed by Craig Ball in a forthright article called A Good Decision Brings Out the Bullies – a title which tells you which side Craig takes. His analysis takes the key facts, a less-than-complimentary examination of KPMG’s actions, the reasons in forensics and evidence terms why the hard drives which were the subject of the application ought to be preserved, and a sprinkling of references to the rules.

The briefest recital of the facts, for those who are starting here, is that a claim has been brought against KPMG by current and former associates who say they were deprived of overtime payments. KPMG chose to collect 2,500 hard drives used by potential claimants. This, they now say, is costing them significant sums and puts them at risk that the data thus preserved will become subject to legal holds in other cases. Read the rest of this entry »

Guidance Software adds Data Reuse Feature to EnCase eDiscovery

November 10, 2011

There are two reasons for referring you to the latest additions to Guidance Software’s EnCase eDiscovery. The first is the addition of functionality to identify and reuse data which has already been collected, allowing searches of data collected for previous litigation or investigations. The second is the video which Guidance has released to explain the new functionality, a model of simplicity and clarity.

EnCase eDiscovery is Guidance Software’s flagship application for network collection of data from across all or any of a company’s data sources. It has moved on from mere collection (not that collection is trivial) to include legal hold, first-pass review, pre-collection analytics and other tools to enable decisions to be made quickly and early in the litigation or investigation. The reality for many companies is that the same custodians and the same time-frames recur in multiple cases – however wide or narrow the definition of a “key player” (itself an open question as a result of the KPMG case) the relevant decision-making and information-flow in most companies lies in relatively few hands. Companies therefore find themselves collecting the same data over and over again.

The data reuse feature is designed to minimise this. However efficient a collection is in terms of network traffic (and Guidance prides itself on this) the ability to make use of existing stores cuts down the traffic and speeds up collections, particularly from mobile workers. I will demonstrate my own commitment to data reuse by pointing you to an article about the new feature by Evan Koblentz at LTN.

Guidance Software has been revamping its website which is now one of the best, with simple navigation to the main headings, clear divisions between different types of information and an understated colour scheme which catches the eye precisely because it does not scream for attention. This extends to the video which Guidance has released about the new data reuse feature, whose simple illustrations (backed by a sober narrative from Russ Gould, Director of Product Marketing) convey so much more than the breathless excitement endemic in most American marketing materials.

I was present at the meeting of Guidance Software’s Strategic Advisory Board when this development was first discussed and, as with other recent developments from the company, it is interesting to trace a new feature from its origins in user requests through to release.


CY4OR and Manchester’s Deans Court Chambers Forensics Seminar

September 28, 2011

In the nick of time, I note that forensics and eDisclosure experts CY4OR are joining forces with Manchester’s Deans Court Chambers for an evening of presentations and discussions about digital evidence, starting at 5:30pm on 29 September – that is, today.

The speakers are Keith Cottenden, CY4OR’s Forensic Services Director, and Joe Hart, barrister of Deans Court Chambers.

The subjects to be covered include:

  • What electronic evidence may exist and can aid your case
  • How to secure that evidence
  • Technological advances in digital forensics
  • How digital evidence is presented in court
  • Recent case studies

Little or nothing is taught about digital evidence in the formal part of the education of solicitors or barristers, yet an increasing number of cases – commercial, criminal, matrimonial, employment and most other things – may turn on evidence from computers, smart phones and a wide range of other things. This is an opportunity to find out something about it and to meet up with others with a professional interest in the subject.

It is not too late to book a place. The registration details and a link to a flyer about the event can be found here.

Incidentally, CY4OR publish a useful email newsletter (which is where I came across this event). You can subscribe to it from their home page.


The Emerging Technologies Panel at ILTA 2011: remote collections and predictive coding

September 10, 2011

It would be fair to say that, more than two weeks on, my notes of  the Emerging Technologies panel at ILTA are less decipherable than I might have hoped. That is in fact a tribute to Daniel Lim of Guidance Software, Dominic Jaar of KPMG, Keven Hayworth of Morgan Lewis and Howard Sklar of Recommind, who, moderated  by Greg Buckles of eDiscovery Journal who made more good points than I could record.

Emerging Technology Panel at ILTA 2011I can take a shortcut by referring you to Greg Buckles own article ILTA 2011 – That’s a Wrap which gives a good summary of the ground covered. Some in the audience seemed disappointed that only two topics – remote collections and predictive coding – were covered. It is hard to see that much more could fit into a single session, or that any two topics are more important just now than collections which are simultaneously straightforward and comprehensive and the modern ways of cutting the time and cost of review.

The remote collections section focused on two apparently disparate ways of making forensically-sound collections without the risks implicit in custodian self-collection or the delay and expense of sending a forensic expert to each location. Dominic Jaar put the word “remote” into context by referring to Canadian mining companies 30 hours journey time away and to foreign collections which involve bureaucratic issues like work visas as well as technology barriers like low bandwidth. Cross-jurisdictional collections involve quite enough in the way of legal issues without these extra implications. Where it is not possible to collect across the network, a portable device using a pre-programmed dongle to define the scope of the collection and to ensure consistency across multiple collections is a more than adequate, and low-cost, alternative.

However the collection is made, the lawyers must strike a balance between the expense implicit in over-collection and the risks of under-collection. Dominic Jaar neatly bridged the session’s two topics by wishing for a merger between the selection power of predictive coding and the collection capabilities of remote collection tools. Perhaps we will get there by 2013, but we have first to get acceptance for predictive coding as a defensible technology. This, as Greg Buckles indicates in his article, was the main theme of the predictive coding section of the session. Read the rest of this entry »

You collect the loot and a forensic expert will collect the evidence

August 19, 2011

One would hope that every lawyer engaged in litigation is aware that specialist experts exist who can collect data from computers in a manner which will stand scrutiny in a court. Actually, I have no such hope, since I come across lawyers who have either never applied their mind to this subject or who think that forensics is a deeply mysterious black art, or perhaps part of the syllabus at Hogwarts.

The collection of data in a forensically sound manner is only a part of of skills and services available from a forensics expert, the criminal courts are not the only place where you might need such skills, and computers are not the only source of evidence which is digital. Many civil and, indeed, matrimonial, cases require such evidence; data involves more than documents; and computers are far from the only source of digital material. Last, but not least, you may need the service of such an expert to disprove an allegation made against a client as much as to prove a case.

it may not be immediately obvious that there is a connection between the recent civil disturbances in the UK and the work of a forensic expert. You may be interested in an article published this week in the Manchester Evening News and headed Hi-tech methods that will catch Manchester rioters about the work which CY4OR is doing to help the police identify those responsible for the disorder. That involves enhancing CCTV images as well as collecting data from the telephones and computers of those suspected of involvement. Nor does the investigatory work end with the suspects’ own devices – social media like BlackBerry Messenger or Facebook, as well as eBay, are possible sources of information relevant to every aspect of alleged involvement in the riots, from encouraging others to join in through the actual events and on to the tracing of stolen  goods.

CY4OR have their own article about this here. One hopes that riots will not be a regular component of a lawyer’s work, but high-profile incidents like this serve as a reminder of the very wide range of evidence which can be collected – or rebutted – by the use of a forensics expert.


The Value of eDiscovery Self-Collection Tools

August 8, 2011

I mentioned in a recent post that membership of Guidance Software’s Strategic Advisory Board brought the pleasure of seeing developments work through from concept to production to adoption. One of the most exciting of these was Guidance’s EnCase Portable. The subject comes up now because Sean Doherty in Legal Technology News wrote an article headed Compare and Contrast: eDiscovery Self-Collection Tools which, as well as mentioning some of the players, including  AccessData, Guidance Software and Pinpoint Labs, gives a good summary of the value of tools like this and an explanation of when and how they are useful.

Unlike Sean Doherty, I am not in a position to do a “compare and contrast” piece on these products. I do, however, know two of the companies well because Guidance and  AccessData are sponsors of the eDisclosure Information Project.  I have suggested before that these tools have a place not merely in the hands of professional collections experts but within companies and law firms. Not every collection warrants the attendance of an external expert: an HR department may think it necessary urgently to collect data from an employee’s laptop; a lawyer may be interviewing someone whose potentially relevant laptop is right there in front of them.

The names of these products are pleasingly apt –  Guidance Software’s EnCase Portable and AccessData’s AD Triage neatly summarise their functions in their names. It would not take much for a company or firm to compare these leading products and to equip someone with the skills to use it

They have another benefit as well. Small and inexpensive they may be, but they offer a convenient and accessible way of illustrating to lawyers and others what kinds of information can be found on and taken off a computer. This can be an eye-opening experience for lawyers who might otherwise assume that information of this kind is lost or otherwise unavailable. Looked at from one point of view, this is positive skill to have; looked at more negatively, the failure to realise that potentially crucial evidence can be tracked is potentially negligent when mainstream tools of this high capability are available at low cost.


Drawing conclusions from Guidance Software’s Q2 2011 financial results

August 7, 2011

I do not claim any expertise in deciphering trends from the quarterly figures published by the leading players in the eDiscovery industry. I know what I am good at, and the analysis of corporate accounts is not on the list. I shy away from the subject for other reasons as well:  if one comments on one company’s figures then others might expect theirs to be reviewed; if you report on good figures then you should equally draw attention to disappointing ones.

Occasionally, however, one can draw conclusions from the narrative part of the accounts which say something about the industry generally, and I do occasionally draw attention to the figures for this reason.

If I have a particular affection for Guidance Software it is partly because it was the first big player in eDiscovery to back the eDisclosure Information Project. I have done many conference sessions with Guidance over the years and enjoyed them all, both for their own sake and for the evidence of commitment to market education which they bring; I have for three years sat on its Strategic Advisory Board, having the pleasure of tracing progress from those discussions through to product launches and other developments. Guidance Software also has links to other players including a new connection with kCura, the latest sponsor of what I do.

There are other reasons, also, for an interest in Guidance Software’s figures: sitting as they do at the front end of the eDiscovery process, their numbers say something about the state of the industry generally; in addition, sales of network collection software to the higher end of the corporate market suggests that companies are taking seriously the compliance and investigations benefits of a standard collections process as well as the requirements of litigation.

The Q2 report itself is here. The highlights include a 5% increase in overall revenue against the second quarter of 2010, with product revenue flat but services and maintenance revenue up by 11%. The statement by President and CEO Victor Limongelli draws attention to the launch of Version 7 of EnCase Forensic, to Guidance Software’s position in the Leaders’ Quadrant of the Gartner Magic Quadrant for eDiscovery Software, and to the addition of 65 new customers on the EnCase Enterprise platform, bringing the total to more than 1,000 customers, a figure which, I am told, includes over 60% of the Fortune 100.

Any company willing to forecast year over year growth of 8% to 12% (that is, between $99 million and $103 million) in this very public context at the half-way stage in the year obviously has confidence not only in its future but in the prospects for the market generally. I asked Victor Limongelli for his observations on this; he said “Customer adoption is accelerating – we have added more new customers in the first half of the year than we did in all of 2010.  Every company needs to address unstructured, unmanaged data, and we are seeing more and more of them doing something about it.”

Not everything which is collected goes through to being processed, analysed and reviewed – that is part of the point of having an easy way to collect data which you might need as opposed to merely that which you must collect. Nevertheless, the corollary is that those who sell review applications and offer software and services need to see an increase in collections to underpin their own growth. These figures therefore look promising not just for Guidance Software itself but for its rivals in the collections space and for those who sell downstream solutions and services.


CY4OR web site brings forensics to lay lawyers

July 15, 2011

A nice reference has turned up on CY4OR’s website to supplement the words like “professionalism”, “expertise” and “excellent” which recur amongst their testimonials. The one I like reads as follows:

Professional and prompt service and able to “dumb down” the technicalities so that they are understandable to computer illiterates like myself

Another reference includes the words “a personal element”, which ties in with my strongly-held view that personal connections are a key differentiator in a market where it is hard for any of them to find new words to describe what they do.

This is not in fact what took me to the CY4OR website. I went there to capture a couple of blog posts which Bethan Williams put up at the beginning of June and which, like all blog posts, have disappeared from the top of the list. They are summaries, in terms intended to be understood by laymen, of the main purposes and benefits of engaging a forensic investigations company like CY4OR.

One is headed Computer Aided Fraud Detection and Investigation Tools and the other is called Recent Developments in Computer Forensics Analysis. Being “computer illiterate”, as the referee describes him or herself, is not itself the problem. The problem lies in not spotting the possibility of finding (or losing) evidence at the right time in a case, and knowing where to turn for help with that. These articles recur in the current edition of CY4OR’s newsletter – this is called Digital Exposure, and you can sign up for it on the CY4OR site.

I am writing a paper for CY4OR which focuses on what lawyers need to know in a broad range of circumstances, including some which are not necessarily obvious. Amongst the testimonials, for example, are a couple which refer to the use of forensic evidence to disprove something or to acquit someone wrongly accused of some computer misuse. It is worth emphasising that computers can hold many clues which may overturn apparently strong but circumstantial evidence, as well as for finding or proving a case.

CY4OR are certified Clearwell partners and the latest entry on the CY4OR blog, headed A More Comprehensive eDisclosure Solution, covers the acquisition of Clearwell by Symantec which has just closed – I wrote about that here. CY4OR will be very pleased to show you what it is which prompted Symantec to buy Clearwell for $410 million.

A pedant writes: “What is a lay lawyer?” Mike Taylor challenges my use of the word “lay” in my heading. He is not wrong to tease on the subject, but I ain’t changing the thing which connects this post to Google’s indexes. “Lay” in this context means “not expert”; lawyers may be expert in the law but, like the giver of the testimonial referred to, not expert by their own admission in some discipline needed to pursue an aspect of engaging in their profession. That is what the article is largely about, and that is why the word “lay” appears in its title.


Time to take the next steps: a Hong Kong eDiscovery conference

June 26, 2011

Leaving aside Australian conferences, this was my fourth AsiaPac event. Two years ago, I co-chaired a conference for LexisNexis in Singapore. Shortly after that, Jeffrey Teh and others from LexisNexis set up InnoXcell to bring business events to the region. I did conferences with them last year in both Hong Kong and Singapore and was pleased to be asked back to Hong Kong for this week’s conference.

Here is a Twitter exchange between me and whoever tweets on behalf of @Exterro and @eDiscoveryGroup after the first day of the conference:

Me: Day 1 of eDiscovery conference in HK ends – a good day. Two sessions down and one on costs to go tomorrow

Exterro: How has that conference being going? Any ground-breaking stuff happening?

Me: That is not what to expect here – slow attrition is the target rather than breaking new ground

Exterro: Well then how is the slow attrition going? [He doesn’t give up, this one]

Me: Steadily and in the right direction

eDiscoveryGroup: “Steadily and in the right direction?” What direction are they headed?

Me: If I’d known I would provoke an inquisition from all corners I’d have kept my trap shut. My report will follow.

So here is that report. “Steadily and in the right direction”, as used in my tweet, has its plain English meaning – nothing dramatic has happened in Hong Kong in e-Discovery terms since I was last here, but there is interest from a wider range of companies and lawyers provoked by much the same pressures as arise elsewhere. As with everywhere else, we need to move on from “What is native format?” to “How can I best reach my client’s objective?”. Read the rest of this entry »

Craig Ball Entertains at CEIC 2011 on Computer Forensics for Lawyers

May 23, 2011

I choose my words carefully when I write, and nowhere more than in the headings to articles. It took me 10 seconds to decide that the word “entertains” would form part of the heading to this post. “Entertains”, “Forensics” and “Lawyers” might appear to be mutually exclusive terms. Add the fact that Craig Ball’s session lasted for two and a half hours across lunchtime on a sunny Sunday in Orlando, the entertainments capital of the world, and you would think it remarkable that anyone could hold a large audience. Craig pulled it off.

Craig BallThe venue was CEIC 2011 or the Computer Enterprise and Investigations Conference to give its full name. The title of Craig’s session was Nerdy Things Lawyers Need to Know About Computer Forensics and a Few Nerdy Things Forensics People Need to Know About the Law. I have pages of notes, but I do not intend to summarise the whole thing. A few points will give you the flavour of it.

Many important things are very dull, and the standard recitals of information volumes – how many Gb per typical user and what that converts to in paper for example – is one of them. Here is one to grab your attention: take every word you ever read, every piece of evidence you have seen, and every phone book, cereal box, and road sign; add the text of every conversation in which you have taken part, the lyrics of every song you have ever heard and the script of every movie or television series you have seen. All that would fit on the smallest hard drive you could buy, with room to spare. Other media forms add volume – we are constantly photographed, and financial transactions are tracked; GPS allows our movements to be traced, and all this is in addition to information which we choose to publish about ourselves on FaceBook or whatever. Read the rest of this entry »

Clear and convincing evidence needed to show contempt in intimate pictures case

April 28, 2011

I am writing my annual play for US and UK judges to perform at IQPC in London. The purpose each year is to sweeten the pill of e-disclosure didacticism with some light humour. If I always cast the US judges as the good guys delivering pearls of wisdom from the bench, that is because we are good hosts and polite to our guests, not a judgment on the relative merits of the two systems.

Last year, the play virtually wrote itself – we had had a run of UK cases, some of which defied parody and required no embellishment to raise a laugh. The only case of note in the last twelve months has been Rybak v Langbar where the claimant’s case was struck out because file deletion software was used between the date of the order for delivery of his computers and the actual delivery. In a painstaking judgment, the judge concluded that the claimant had deliberately destroyed data and that “it must have been judged by him to be adverse to his case and potentially beneficial to Langbar’s case”. He would not permit claimants to “ask for a judicial determination on the evidence that they have chosen to put before the court, without the evidence that they have chosen to deny the other party and the court”.

I wrote about the case here and subsequently picked up on an article by Craig Ball called Double Delete Doesn’t Do It.

The setup for a scene in the play about these issues involves comparison between US courts, where heavy sanctions for destruction of data are common, and those in the UK where they are rare. The Rybak case in fact says little about the general duty of preservation and disclosure because it involved the breach of an “unless” order. The factual findings (as to the use of the file-erasing application and as to the intent) showed a breach of the order, making it unnecessary to reach a conclusion as to pure disclosure principles. Read the rest of this entry »

Filling the day and nearly getting filled with lead

April 17, 2011

One of the influential figures in US ediscovery gets very cross at references to the “ediscovery market”, as if the commercial connotations somehow sully the purity of the context of rules and judges and justice which the ediscovery / e-disclosure industry supports. I am pretty keen myself on the “pure” side of it, and more widely than my ediscovery remit, which is why civil liberties and the relationship between rulers and ruled turn up in these pages from time to time.

The “market” side of it, however, is both integral to the delivery of justice and interesting in its own right, both in the delivery of legal services and in the technology which is my own particular concern. What I do touches on several different aspects – business processes, technology, the law itself, and marketing. Periodically, I am asked: “What exactly do you do?”. One of my children, when asked this question recently, said “He writes a blog”, presumably leaving the questioner little the wiser. What I do is, of course, of interest to others only to the extent that it throws light on the market. If I describe my day in London on Thursday, as I am about to do, it is because it touched a lot of industry corners, and not because my own diary is likely to enthrall anyone for its own sake. It nearly included a rather closer interaction between rulers and ruled than I generally look for. Read the rest of this entry »

A Craig Ball anti-forensics article reminds UK readers of Rybak v Langbar

April 11, 2011

Thousands of words are written each week about e-disclosure / ediscovery. That old joke about today’s article is being tomorrow’s cat litter is hard to apply literally to electronic publication, but it is right to say that few of the many articles are read much after the month in which they were published. Many of those which do survive seem to be written by US forensic expert Craig Ball.

I predict a long life for his article Double Delete Doesn’t Do It published on Law Technology News on 1 April. I have deliberately included a reference to the UK case Rybak v Langbar in my title to emphasise that Craig’s article is as relevant in the UK as it is in the US – this is not true of all US articles, many of which depend on the peculiarities (I use the word in its widest sense, connoting distinctiveness rather than oddness) of US e-discovery.

One of my themes for 2011 is “What actually happens to your data”, reflecting my perception that many of the terms of art used in ediscovery / e-disclosure pass over their heads of those who need to understand what is actually involved. It is hard to avoid this in conventional marketing materials which must necessarily be punchy and succinct. Shades of meaning get lost by this abbreviation; whole subjects embracing a wide range of concepts get reduced to a single word or snappy expression. “Processing” is one example; “forensic collection” is another.

The broader sense of the term “forensic collection” implies that data is collected in a form which exactly matches the original. Whole servers, laptops and a range of other devices, including perhaps empty or slack space (don’t ask, not just now anyway), are copied to preserve the contents as they stood at the date of collection. The term equally applies to the collection of sub-sets, such as particular folders or the documents of particular custodians; it can apply to the examination of a single document. Forensics, though, goes further than mere collection and can include analysis and deduction – the adoption of the word “forensic” in computing science should not obscure its original meaning which, in my (pre-computer) dictionary is “of, used in, courts of law”. You may engage a forensics expert simply to ensure that data has been collected in a sensible manner; you may need him in a role more akin to that of a detective.

Craig Ball’s article describes the latter situation. He was engaged to examine the computers of a party to litigation pursuant to a court order as an independent expert. Part of that task involved technical tools and technical knowledge. Part of it simply involved informed observation – it is near-impossible anyway to conceal the use of disk-cleaning software like CCleaner, but leaving its icon on the desktop is a bit of a giveaway, like the bank robber who wrote his demand on the back of his own utility bill or the one who had his name stencilled in large letters on the motorcycle helmet used to hide his face. Read the rest of this entry »

Guidance Software adds forensics and ediscovery for iPad and iPhone

January 27, 2011

Guidance Software, best known in the e-disclosure / e-discovery world for enterprise network collections with EnCase eDiscovery, has announced a new forensic tool for the Apple iPad, iPhone 4 and iPod Touch. Encase Neutrino also handles Android 2.1 and 2.2.

An iPad may seem small fry compared with the enterprise servers which hold the bulk of a company’s data. The iPad is, however, increasingly the first tool of choice for many executives – it is said that one in five Americans plans to buy one over the next six months, on top of the many who have one already. The volumes on any one iPad are relatively small, but it tends to be immediate in the sense that this is where the employee was working yesterday. It is also right to point out, as Guidance Software’s Frank Coggrave does in this article, that each iPad potentially contains 64 GB of very mobile storage.

It is also interesting to see that IT security departments, who are not unreasonably resistant to the ad hoc addition of external devices to their precious networks, are having to bow to the inevitable in the face of such widespread usage, another point made by Frank Coggrave. When IT departments have spent years trying to encourage user adoption of new technology, they have found it hard to stand in the way of such spontaneous user demands.

Apple products have a way of raising challenges. Giving a talk to lawyers recently, I explained that my iMac desktop had a virtual Windows PC inside it. The word “virtual” obviously passed some of them by, and one could see a mental picture forming of a traditional Windows PC case somehow shoehorned into the slim iMac. What I meant, as I went on to explain, was that you can run Windows within a suitably specified Mac, with its own applications and, potentially, a great deal of data, all invisible to those who were not familiar with the concept of a virtual PC. Forensic data collection is not a game for the amateur.

I am not quite ready to abandon my conventional laptop in favour of the iPad, and I will take both to LegalTech next week. I strongly suspect that, by the end of the year, I will be leaving the laptop behind on such trips, and if anyone needs to collect my data, they will have to do it off my iPad, as well as finding the virtual PC lurking in my iMac.


New web sites and a case study make good marketing

January 27, 2011

Although the nuts and bolts of what I do involves e-discovery / e-disclosure rules and the crossover between rules and practice on the one hand and technology on the other, my real interest lies in marketing, with a self imposed brief to market the concepts and benefits of ediscovery / e-disclosure as well as those who provide services. My biggest article in the last few days (see Twitter, bribery and 37 corporate counsel in a virtual bar ) has been about that rather than about either rules or technology.

I have always had a soft spot for the blog maintained by forensics experts CY4OR because they provide automatic links to my own blog posts. They never sought my permission to do this, nor did I ask them to, but I certainly don’t complain at this unsolicited outlet for what I write.

I have had no cause to look there recently, but a couple of recent tweets have taken me to CY4OR sites – it would be interesting, would it not, to get them to track how many of the visits to their sites came from those tweets?

The first tweet took me to CY4OR’s new e-disclosure site which shows how far CY4OR has moved from its roots as a pure forensic expert. It has partnerships with Clearwell and Nuix to add a processing capability to the stage which follows the collection. I am obviously interested in the mere fact of those partnerships, since both Nuix and Clearwell are sponsors of the e-Disclosure Information Project.

My other interest, however, lies in how well a web site guides a potential client through the range of services on offer – the alliances of skills and partnerships make perfect sense to those familiar with what these products do and how they fit into the process, but it is not so easy for those coming new to e-disclosure. I judge a web site by the ease with which an e-disclosure virgin could find out what services are on offer and how a provider can help. Read the rest of this entry »

Rybak v Langbar sends warning to those who destroy evidence

November 8, 2010

Extreme cases do not necessarily add materially to our understanding or give us as much guidance for the future as one might think. Rybak & Ors v Langbar International Ltd [2010] EWHC 2015 (Ch) (09 July 2010)  is what would be called a spoliation case in the US and some other jurisdictions. It is important because we do not have many reported judgments on such matters. The bulk of it, however, is taken up with the judge’s painstaking analysis of the key facts of the alleged document destruction, leaving no one in doubt that there were deliberate acts aimed at suppressing potentially disclosable documents. Once that had been proved, there was little room for argument about the conclusion. The case certainly acts as a warning to those who might be tempted to tamper with their laptops before handing them over, but it gives us no new law.

It would be fair to say that the judgment is rather longer and more complicated than one might think necessary, parts of it reminding me of an undertaker going round with a second set of screws to make absolutely sure that there is no escape. The repetition extends to one passage which is an exact copy of another, suggesting that copy/paste was used where cut/paste was intended (Paragraphs 21-22 are more or less identical to paragraphs 31-33 for the benefit those who, reading it in the middle of the night as I did, might think that their minds must be wandering).

I am not burdened by the need to prove what happened, so my summary can be relatively short. Reducing it to its simplest: Read the rest of this entry »

Comment on Singapore Deutsche AG judgment

June 1, 2010

Vince Neicho of Allen & Overy saw my post about the Singapore judgment of Senior Assistant Registrar Yeong Zee Kin in Deutsche Bank AG v Chang Tse Wen and others (see Singapore e-Discovery judgment shows international commonality and active management) and has input which is worth passing on. Vince says:

How refreshing that, shortly following the Senior Master’s judgment on Goodale, another judge, Yeong Zee Kin SAR in the High Court of Singapore, has grasped control in an e-disclosure dispute to instil some common sense into the process.

As per usual, Chris has reported the judgment admirably, pulling out the pertinent information for us.  I write this commentary for two reasons:- the first is to rejoice that a judge has corroborated two points that I have been banging on about for years and, second, to seek, with respect, to suggest from a practical angle, that there was an alternative course open to the Yeong Zee Kin, that would have rendered the disclosure more useful in the long run and have resulted in significant cost savings. Read the rest of this entry »

CEIC 2010 comes to an end

May 27, 2010

CEIC 2010 is winding down here in Las Vegas. Whatever measure you take – the quality of the sessions, the opportunity to catch up with people and meet new ones, the sheer numbers of people attending (1,300 or so), the venue, or the glimpses through the bus windows of this not-quite-real city on the way back from dinner last night – it has been a great success.

For those unfamiliar with it, CEIC stands for Computer and Enterprise Investigations Conference and is run by Guidance Software, whose data collection and processing applications are used all over the world for everything from one-off defensible collections to enterprise-wide network collection applications and the consultancy which goes with it. My particular interest, electronic discovery, is only a part of what the applications are used for – internal investigations, HR incidents, government and military needs, and rapid reaction to external or internal demands for information, are all covered. It is deeply technical stuff, and its users need technical training to match. CEIC allows all those involved – from hands-on lab types to decision-makers – to gather once a year, to top up their skills, to meet others with the same or adjoining skills, and to find out what drives the other players. The technical people increasingly need to know about the context in which they collect data, and those who devise strategy must have some idea of technical difficulties and solutions. Read the rest of this entry »

Missing my Dragon

May 27, 2010

Jonathan Maas of Ernst & Young says that I missed  a trick in my account of the laptop which died en route to Las Vegas and which I had to replace and set up in order to do a webinar (see Keeping at work in the Cloud from Las Vegas. I had explained that the reorganisation of my data on the plane had made it possible to save a copy of it on to a USB stick in the short period between booting up my laptop and it closing down through over-heating. Jonathan said:

I’m surprised you didn’t use the ease of transfer of your recently ordered files from your old to your new laptop as hands-on proof of the benefits of ordered disclosure from a corporation’s prepared IT infrastructure! Read the rest of this entry »

Keeping at work in the Cloud from Las Vegas

May 24, 2010

I have been here in Las Vegas a little over 24 hours. So far I have been asked by a cop if I have been arrested before, and been blatantly short-changed in Starbucks; I have been to one tourist attraction where the weather was so fine that we could not reach it for the crowds and then immediately to another where the weather was so vile we could see nothing. Oh, and my laptop, my mobile office equipped for every eventuality, has died on me and I have a webinar to do on Tuesday. Things can only get better. Read the rest of this entry »

Video illustration of forensic collections tool

May 14, 2010

I am always looking out for new ways of getting to wider audiences. Although you cannot beat actually talking to people, the Internet offers other ways conveying information.

Forensics collection experts 7Safe have produced a video about their data collection application 7Phrase. If you are unclear what forensics collection means, this is a quick and easy way to find out.

It is interesting to note that it is the data collection people who have got their act together on alternative ways of reaching new markets. I wrote recently in an article about data collections about a video produced by Guidance Software demonstrating possible uses for EnCase Portable. Where are the rest of you, with new ways of telling us about your products?


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

May 13, 2010

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

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

Reminder: Dominic Regan and Chris Dale on e-Disclosure at Ely Place Chambers on 12 May

May 11, 2010

Professor Dominic Regan and I will be leading a seminar from 2.00 until 5.15 on Wednesday 12th  May at Ely Place Chambers on the subject of electronic disclosure of documents.

Lord Justice Jackson’s only recommendation in relation to e-disclosure was that there be substantial training for both lawyers and judges. This is an opportunity to find out why he said:

The first point which needs to be made about e-disclosure is that it is inevitable in cases where the parties hold the relevant material electronically. For the parties to print all the material out and then exchange it in hard copy would often be impracticable. With all but the smallest volumes of material, that course would not be cost effective. Thus in cases where edisclosure is a consideration, it is often a practical necessity rather than an optional course.

Lord Justice Jackson also drew attention to the need for judges and lawyers to know about and understand the technology which is available to address the problems raised by large volumes of electronic documents. Dominic and I will be supported by three providers of litigation support services. 7Safe will talk about the collection of data. Legal Inc will describe the range of consultancy services which are on offer from a general provider of litigation services. FTI Technology will cover processing and document review.

This is a lot packed into one afternoon – there is nowhere else where you can cover the law, the practice and technology in one session. Ticket prices are £94 including VAT and can be obtained on application from Chris Drury, the Clerk at Ely Place Chambers.


Ofsted has shown us WHY we should collect data properly and now lawyers must find out HOW

April 9, 2010

We do not yet know if Ofsted’s failure to give proper disclosure in the Shoesmith litigation was the result of cock-up or conspiracy – I am hedging my bets and assuming both that Ofsted fouled it up and that the government interfered to spin the story they needed. What matters is that the world now has a very public example of why a proper collection of documents is necessary. The next step is to explain how to get it done. A new video about EnCase Portable helps to get the message across.

As you may have gathered, I am resistant to the use of words like “revolutionary” when applied to products in the litigation support market. Most of the best products are, in fact, simply the latest iteration of a tried and tested product whose new features represent quiet and steady evolution rather than anything as exciting as a “revolution”. From my own years of selling software, I know that anything which suggests revolutionary change tends to alarm rather than excite, particularly if the audience includes lawyers. Revolution makes them think of tumbrils or Bolsheviks and the loss of an exclusive authority as power passes overnight to the masses – not the sort of thing lawyers go for at all.

What about the situation, however, where they are the masses and there is an opportunity for them to take power from a yet more exclusive group? I was talking along these lines to a couple of lawyers from a go-ahead regional firm a few days ago. I have come across them at various e-Disclosure-related functions, and they are a model for the kind of firm which is in a position to win work either by taking it away from other firms or by creating new areas of expertise in-house. The immediate context was the urgent collection of data, and I suggested that every firm ought to have a copy of Guidance Software’s EnCase Portable and the in-house skill to use it. I made it clear that I was not advocating that firms of any size should routinely handle all their own data collections, but that there are often circumstances when the ability to collect modest amounts of data – perhaps from a client’s laptop there and then – could save much time and expense and, indeed, could save a case in some circumstances. Read the rest of this entry »

Gucci v Curveal: a blow for US interests – whichever way you understand that expression

March 26, 2010

British 19th Century “gunboat diplomacy” and the song The Wreck of the Old 97 are what came to mind when I read the latest Opinion of a US court about the relative importance of US interests and the laws of other countries restricting the discovery of private information. Carry on like this, USA, and you may well need a gunboat to support document collections.

The article by the respected US e-Discovery commentator Tom O’Connor Why the Rest of the World Thinks we are Crazy concerns an Opinion of the District Court of the Southern District of New York which orders a Malaysian bank, not party to the proceedings, to produce documents despite a Malaysian statute prohibiting them from doing so. I volunteer to speak on the half of “the Rest of the World” Read the rest of this entry »

A flying visit to Edinburgh

March 22, 2010

The spate of blog posts last week-end was a clearing of the decks in the knowledge that I would not have much writing time for a bit. The Edinburgh trip which is the subject of this post is being followed by some in-house sessions for lawyers, and when there is a choice between talking to people and writing, the talking comes first. I also had to take every last stick of furniture and cabling, right down to the router, out of my office so that it could be  decorated and, after 11 years in the same room, that takes some reassembly.

I was in Edinburgh on Tuesday, speaking to the Scottish Society for Computers & Law with Ian Manning of Raposa Consulting and Nigel Murray of Trilantic. Trilantic organised it, and kindly invited me to take part. The law technology commentator Charles Christian of the Orange Rag has rather unfairly labeled me as the Ancient Mariner of air travel on the basis that I no sooner book a flight than either the prices plummet or the airline announces a strike. This is the first time, however, that an airline has actually ceased trading between my booking the ticket and take-off. Shortly after I was invited to go to Edinburgh, a small airline announced the opening of a route from Oxford to Edinburgh, and the price, the convenience, and the wish to support a local venture caused the suspension of my usual caution and my loyalty to British Airways. If someone ever offers to fly you from just up the road to where you need to be for £49 each way, then the offer is almost certainly too good to be true – and so it proved. The airline suspended flying in days, and I ended up as usual in my branch office, the BA Executive Lounge at Heathrow’s Terminal 5. Don’t even ask about the return journey.

In between, however, it was a good trip. Ian Manning and I went to see one law firm which gave us a feel for the climate and the context – you can read all you like about a jurisdiction, but you have to go there to begin to understand those things which are the same and those things which are different. Read the rest of this entry »

EnCase Portable brings data collection to your desktop

March 8, 2010

The idea that a law firm might keep a copy of Guidance Software’s EnCase Portable in a drawer for on-the-spot collections leads into a discussion about how much a firm needs to know.

I will let Guidance Software speak for themselves about EnCase Portable via their web page about it, the descriptive information about EnCase Portable Version 2 and the press release which says that it is due to be released in late March 2010.

I am, as always, more interested in how new developments can help lawyers to understand what these applications can do as a technical matter, and to see how they might take control of parts of the eDiscovery process where it makes economic sense to do so. The point about EnCase Portable is that it allows lawyers and their clients to undertake rapid data collections without outside help. My general proposition that most lawyers do well to have a stable of experts – people whose skills, prices and individuals they know – on whom they can call quickly. This applies particularly for the collection stage which is both technical and the foundation for everything else – foul that up and what follows is inherently flawed. 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 »

7Safe White Paper: the inter-relation between computer forensics and e-Disclosure

March 1, 2010

7Safe has published a white paper which I co-wrote with James Kent of 7Safe. Its purpose is to explain, mainly to lawyers, the role of a forensic collection of data in the subsequent proceedings, whether those be civil or criminal proceedings. The paper is called eDisclosure & Forensics – What do I need to know?

The paper traces the development of forensic techniques which were used first in cases involving fraud and the like. As defendants’ lawyers became more adept at challenging the technical evidence, so police and other enforcement agencies needed to improve not merely the manner of collection but their subsequent ability to prove that the collected data was what it appeared to be and had come from the alleged source without having been tampered with on the way. Read the rest of this entry »

There is more to FTI Technology than Attenex and Ringtail

February 20, 2010

My self-imposed job description involves flitting between all the players in the electronic disclosure / electronic discovery world, picking up information and ideas from one place and dropping them in another. I talk to judges, lawyers and technology suppliers, read a lot of web-based information and exchange e-mails and tweets with people from every corner of the e-Discovery world – “world” in both the figurative and literal senses. I am interested in the court rules, the practice and the technology and in how they relate to each other.

I keep secrets where I have them – from working with lawyers on behalf of their clients or when I am told of pending technology or marketing initiatives, to say nothing of the gossip which flies around – but, on the whole, my role is to talk and write about what I hear or read. The only filter apart from confidentiality is whether I am interested and think that others will also be interested.

This is a privileged position – I have lots of privileges, but the ability to pick off only the things which interest me outranks the rest. It allows me, magpie-like, to pick out the bright and shiny things and leave the rest on one side.

AttenexOne of the bright and shiny things in the litigation software market is Attenex, whose visual analytics caught my eye some time ago for precisely the reason why they attract lawyers – they make it possible to grasp the overview and to drill down to the detail in a way which is simultaneously efficient and intuitive. Attenex is now owned by FTI Technology, as is the equally iconic Ringtail Legal.Ringtail FTI has now had time to bed these products down into their overall (and very broad) software and services offering and I thought I ought to go and see where they have got to and how the pieces fit together in the process. Craig Earnshaw, managing director of FTI technology in London, invited me in for an afternoon recently to bring me up to date. Read the rest of this entry »

A short video could win you free tickets and accommodation at CEIC

February 17, 2010

The use of video turns up in these pages either where a supplier has used the medium to educate or to promote a product, or in a slightly embarrassed reference to my own reluctant appearances in front of the camera.

CEIC (Computer and Enterprise Investigations Conference) has come up with an interesting new use for the medium. They are offering free entry and accommodation for CEIC 2010 to the person who makes the best short video explaining why the maker wants to go to CEIC. The competition details are here.

CEIC was in Orlando last year. I was there in my capacity as a member of Guidance Software’s Strategic Advisory Board and thoroughly enjoyed it, despite torrential downpours. This year, the conference is at Summerlin in Nevada, so bad weather is unlikely. Read the rest of this entry »

7Safe launches UK Security Breach Investigations Report 2010

January 29, 2010

Mysterious messages have been appearing on Twitter all week like “In 85% of data breach cases, payment card information was stolen”. They all lead back to an analysis of data compromise cases over an 18 month period which 7Safe have published in conjunction with the University of Bedfordshire, supported by SOCA (Serious & Organised Crime Agency) and the Metropolitan Police Service. It is called the 2010 UK Securty Breach Invesigations Report.

7Safe’s Alan Phillips has been busy with a blog which now includes, in addition to written comment, some videos and photographs (including one of me, I see, now I look closely). I have not had the chance to look at the videos yet, but I am, as you know, keen to see all kinds of media pressed into service as marketing tools, whether of the wider concepts of edisclosure or for particular suppliers.

Alan Phillips will be at LegalTech along with Jim Kent and Adam Page of  7Safe, not so much on the subject of security breaches, but because of the company’s role as hosting provider of Anacomp’s review platform CaseLogistix.


Guidance Software launches EnCase eDiscovery 4 with help from Twitter and YouTube

January 22, 2010

Guidance Software has released EnCase E-Discovery 4, which offers a pre-collection analytics capability as well as the ability to analyse and review ESI throughout the key discovery processes – during a legal hold, during forensic data collection, post- collection, during and after processing and on into first-pass review. This brings all these phases within the reach of an in-house team – and since that seems to be the way the world is going, the release is timely.

Guidance Software is getting good at using alternative forms of media to get information out to the world – I wrote approvingly about a video on EnCase Portable (see Show me more like this) last August because it showed a hands-on guy getting his hands on an application and showing us how to use it. Read the rest of this entry »

Anacomp divests to focus on CaseLogistix, eDiscovery and litigation

January 5, 2010

Anacomp has sold its MVS Division to DecisionOne in order to focus on eDiscovery with its document review application CaseLogistix and the services which go with it. 2010 should be the right year to concentrate on eDiscovery

You would probably expect me to be an advocate of specialisation, and of sticking to what you know about. What do you do?, people ask. I am involved in a small sub-set of the procedural requirements for civil litigation, I say. They yawn. There’s more, I say. I know about a specific aspect of the use of technology for information retrieval and review. They look around for someone else to talk to. No, listen, I say, the intersection between these two subjects is really interesting and important. Their head hits the table. There is only a handful of us in the world who just write and talk about it, I add, as I try to shake them awake. Gone.

I exaggerate, a little. That is, however, the way the world is going as life becomes more complicated and information-rich. If you practice law or medicine, manufacture things, teach or join the military, the trend is towards finding something you are good at and which people want to buy, and doing it well.  There are exceptions – people or businesses who find skills or niches which complement what they do already or to which they can bring a team and a process which they have developed in their main business. The word consolidation can imply two opposite ideas – adding complementary business areas or bringing your main fire-power to bear on one target. Read the rest of this entry »

The Baby P case may be the disclosure story of the year

December 15, 2009

It begins to look as if the Baby P case will beat even Earles v Barclays Bank in terms of its long-term influence on disclosure, not least for the likely focus on individual failings. Is this cock-up or conspiracy? Why were documents being photocopied anyway? How about a forensic examination of Ofsted’s computers, even at this late stage?

There are so many discovery cases in the US that there is usually a “Top 10″ list, identifying those which were the most important. In the UK, only one or two cases will reach prominence in any year. Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile)  was a relatively straightforward commercial case in which the defendant bank failed to produce documents relevant to the central issue. The disclosure point centred around an unsupported contention that it was disproportionate to search for the documents in question. The judge punished them in costs but expressly ruled out ill intent as a motive.

The Baby P case adds several dimensions – a political element, late disclosure of a significant quantity of documents, a formal report apparently rewritten to improve a case, an implausible explanation for the deficiencies, and now the suggestion that the threat of litigation was met with a memo urging the destruction of certain documents. The combination of political interference, apparent bad faith and inherent incompetence makes for a story with the full force of the best (that is, the worst) of the US ones. Almost everyone involved, apart from the lawyers, is inherently dislikeable individually and as a class, but that must not distract from the messages about justice, not least because justice was the first victim here from the moment the original story broke. Read the rest of this entry »

Strategic alliance allows 7Safe to host Anacomp’s CaseLogistix

November 26, 2009

What is the seating etiquette if you go to a wedding knowing both parties? Do you have to make an invidious choice between one side of the church and the other? Perhaps you sit in the aisle or hang from the rafters.

I was set musing on this by the announcement that two of the sponsors of the e-Disclosure Information Project, Anacomp and 7Safe, have announced a new strategic alliance. Under the terms of the agreement, 7Safe provide the hosted version of Anacomp’s review application CaseLogistix, and will serve as a preferred provider of data processing and other e-disclosure services in the UK as an Anacomp Connected Partner Program Certified Services Provider. The press releases (7Safe’s here and Anacomp’s here) are necessarily in similar terms. Read the rest of this entry »

LexisNexis eDiscovery conference in Singapore

November 4, 2009

As you might infer from its name, the e-Disclosure Information Project set out with purely national ambitions. England and Wales is the only jurisdiction in the world to give the name e-Disclosure to the process of identifying, preserving, collecting and exchanging documents for litigation. If I had known that two years later I would be speaking in Brussels, Washington and Singapore within three weeks of each other, I would not have picked a name with so narrow a jurisdictional scope.

The wider I cast my net, the more it becomes clear that the jurisdictions which require discovery of documents (principally England and Wales, the US, Canada, Australia, Hong Kong and Singapore) have more similarities than differences in their approaches to the problems and the solutions raised by electronic documents. At one level this is obvious – all of these jurisdictions give pre-eminence to contemporaneous documents as the primary source of evidence, they have all seen a vast growth in volumes of evidence, and there are a limited number of ways in which court rules and procedures could develop to take account of mass documentation in adversarial proceedings in which justice is only accessible if it can be afforded. If you were to describe the problem to someone who, although suitably skilled and intelligent, had no knowledge of the developed law and procedures, you would end up with a solution whose essentials were broadly similar to those which obtain in the jurisdictions which I have named. Read the rest of this entry »

Discovery explorers need a map

October 16, 2009

You can kill an analogy with overuse, just as every cliché was once a clever new phrase. Describing e-discovery / e-Disclosure in terms of explorers and maps, however, does not become hackneyed, because exploration itself continues to excite and because it works very well as a parallel.

Each nation has its own stirring examples, and they come from all over the place. What do I get if I take the first ones which come to mind? Mallory and Tenzing climbing Everest in the year I was born. Howard Carter and Lord Carnarvon in Tutankhamen’s tomb. Sir Walter Raleigh in Virginia and South America. Scott, Shackleton and the others in the snowy wastes of Antarctica (I have a soft spot for Sir Vivian Fuchs, leader of the first overland crossing of Antarctica in 1958, if only for the newspaper headline “Vivian Fuchs off to Antarctica”). Doctor Livingstone greeted by HM Stanley in an African clearing. The use of maps necessarily implies that someone else has been there first, but is no less interesting – I have just bought a large-scale ordnance survey map of England in digital form so that I can scroll across it as we drive (as my wife drives, I should say), so interested am I in the landscape through which we pass.

If you are American, you do not need to go abroad to find stirring examples of exploration, and many of them are more or less in your own backyard. The names which come to mind are those of Lewis and Clark, whose expedition of 1804 to 1806 was the first overland exploration to the Pacific coast and back. That had a political and commercial purpose going beyond mere exploration for its own sake, since the US was in the process of undertaking the Louisiana Purchase, and neither it nor the French who were selling it, knew how big the acquisition was. We now know that it comprises about 23% of the modern US.

I am brought to this apparently random line of thought by a reference in Tom O’Connor’s recently published Top 10 EDD Tips for General Counsel, which can be found on the Law Technology News website (the second article on that page) and were the subject of Tom’s Masters Conference webcast. One which caught my eye was Point 5 which reads:

Talk to your IT department. They know how to make the map. You are Lewis and Clark, they are Sacajawea. You absolutely cannot navigate without them. Read the rest of this entry »

Flying the wrong messages across cultural boundaries

September 23, 2009

Most broad ideas of the characteristics which identify people from other races and cultures contain a grain of truth as well as a dollop of unfairness. The excitable French, stoic Britons and [supply your own words here] Irish turn up in a story in the Sunday Times travel supplement.

An Aer Lingus plane is approaching Paris on a flight from London. An announcement is made in French and in English. The French get into a tremendous flap with (I embellish here somewhat) much “Zut alors!”, “Sacred blue!”, “Where is the pen of my aunt?”and all the other expressions of excitement which we associate with the Gallic nature. The Britons, meanwhile, sit calmly, with what appears to the French as a degree of sang-froid quite inappropriate to the circumstances, whatever they had heard about British stoicism.

It transpires that the cabin crew have got the tapes muddled up. English-speaking passengers were merely advised to return to their seats and fasten their safety belts. The French, however, were told to prepare for an emergency landing, to note where the emergency exits were, and to await instructions from the captain.

Stories of such mutual incomprehension and cultural stereotypes turn up from time to time in the context of foreign data collections (where the standard advice, of course, includes the suggestion that you refrain from calling your hosts’ language “foreign”). Data collection experts instructed by a US law firm went to a subsidiary company abroad to collect evidence for litigation, with the understanding that the culture of the country was that staff were immensely loyal. The collectors were puzzled to find that they were obstructed at every turn, and it took a long time to discover that whatever they had said on their arrival had been interpreted as meaning that the subsidiary’s senior management was under investigation. The employees were just being immensely loyal – exactly as the lawyers had been told they would be.


7Safe blogs to keep us informed about e-disclosure forensics

September 17, 2009

E-disclosure Information Project sponsor 7Safe has joined the growing number of businesses using a blog to pass on information about what it does and what is happening in the company. It is a powerful and cheap marketing medium whatever you are promoting.

It will not surprise you to know that I believe strongly in the role of blogging as a means of conveying business information. My blog began as a backup resource to my website, a place, as I pictured it, where I could drop snippets of information without the relative formality and structure which a website requires. It speedily became my main output platform, a place where I sometimes put thousands of words each week. Although I intended it primarily as a feeder for my website, most of the traffic in fact goes the other way, with my website acting as an index to recent blog articles. I do the same for a law firm client and am about to start another. It works. Read the rest of this entry »

London meeting of Women in eDiscovery

August 21, 2009

I am a supporter of Women in eDiscovery and glad to learn from Laura Kelly of Epiq Systems that the London branch is active. They have a meeting on 17 September at the offices of Fulbright & Jaworski, 85 Fleet Street, London, EC4Y 1AE. Read the rest of this entry »

How big is the London e-disclosure market?

August 10, 2009

I may have brought you here under false pretences. I have no idea how big the London e-disclosure market is and I do not think that anyone else does either. I occasionally hear confident assertions suggesting that there is either much more or much less e-disclosure going on than people think but, since the starting point for these relative assessments is never specified, it is hard to deduce what “much more” or “much less” actually means. There is much less here than there is in America, but the same is true (for different reasons) of caribou and McDonald’s outlets. It is a statement of the obvious, rather than a valuable piece of market intelligence. Read the rest of this entry »

Well-justified anonymity of Jackson commentator

July 31, 2009

I am not sure what to make of an article which I have found on a blog criticising aspects of Lord Justice Jackson’s Preliminary Report on litigation costs. I have a general rule that if I do not have something pleasant to say in print, I keep my mouth shut. There are exceptions, of course, whom space does not permit me to list here but, on the whole, I reckon it is possible to comment thoughtfully and helpfully on the litigation support industry without attacking anybody, even if I have, occasionally, to grit my teeth.

I have stumbled upon this blog before, tipped off by one of my Google alerts. It seems competent, workmanlike stuff written by someone who (how shall I put this?) understands more about the technology than he does about the civil litigation context in which it is used. I have no problem with that – he knows much more than I do about file systems and data recovery – but I am put off, just a little, by the fact that the site is anonymous, with no clue as to who the author is or with what authority he writes. He calls himself 585. Do this number hold any clues as to his identity? 585 is (as I’m sure you know) the GeneID of Bardet-Biedl syndrome 4, whose symptoms I will spare you. I very much hope that this is not why he chose 585 as his alias. Perhaps it is his telephone extension. Read the rest of this entry »

The information war – news from the front updated

July 9, 2009

My post Cooperative hands across the sea referred to an article by Jason Baron on Ralph Losey’s e-Discovery Team blog.  Jason’s article attracted some comments, two of which are worth hiving off for comment in their own right. One concerns the “information war” and is covered here. The other is about lawyer education which I will come back to.

Dr Jochen Lardner urges the importance of having the skills to conduct searches in any area of life in an information economy. He refers to “authority/credibility, censorship, technical failure, cybercrime/disinformation/information warfare”. Regular readers will know of my strongly-held view that all of these things, with the possible exception of cybercrime, are areas where UK citizens must do battle daily with their own government, both defensively (it will record everything about you and then lose the data) and offensively (MP’s expenses, ministerial cover-ups).

It now seems likely that the Labour Government will die of weakness and internal corruption before we get to the hanging-from-lamp-posts stage of civil disturbance which seemed a real possibility earlier this year. Nevertheless, we must remain alert to the potential for government misuse (whether by carelessness, incompetence or design) of the mass of private information which is collected about us, and be able to fight fire with fire – the “disinformation/information warfare” to which Dr Lardner refers is a civil war as well as one against foreign powers. Read the rest of this entry »

Ark Group e-Disclosure Conference 2009

June 19, 2009

You can generate a lot of notes in six conference days in three countries in nine days and have little time to transcribe them. I am quite good at actually recording what people say, less so at the small but telling details like headings and page-numbering. I can generally rely on my memory to fill the gaps in my notes (and the bits I cannot read) but that is a tall order when information has rolled at me continuously for days like infantry at the Somme. Ark Group’s e-disclosure conference of the beginning of last week seems a distant memory on a cold, wet dawn in Sydney ten days later when I started writing it all up, still more in the dark aeroplane cabin surrounded by snoring travellers on the way home when I finished it off. There was lots of good stuff said at the conference, but I doubt you would read a verbatim account even if I could set it down. What follows is a summary.

The chairman on Day 1 was Lee Gluyas of DLA Piper UK LLP who, as in previous years, was well up to the challenge of keeping speakers to time. Lee’s opening comments identified a positive shift over the time he had been filling this role, a greater awareness of the issues and the need to grapple with them. Read the rest of this entry »

Ian Manning now at Raposa Consulting

May 31, 2009

As regular readers will know, Ian Manning was the initial sponsor of the e-Disclosure Information Project, providing continued support despite his never-ending overseas travel commitments for FoxData Ltd.   Ian’s extensive experience in forensic collections for commercial litigation and regulatory enquiries has provided valuable market intelligence to the Project as well as many e-disclosure anecdotes which have served as the basis for after-dinner conversations.

The point of all this is to explain to those familiar with my web site and blog the changes you will no doubt notice on it.  Ian’s management association with FoxData Ltd ceased at the end of March 2009.  However, as I hoped, Ian is keen to continue his personal support for the e-Disclosure Information Project.  This support will come via his company Raposa Consulting Ltd.

To find out more about Raposa Consulting go to www.raposadata.com



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