Delivering eDisclosure advice from both sides of the fence: interview with Stephanie Barrett of Navigant

May 27, 2014

One of the continuing themes in eDisclosure / eDiscovery, in the UK as in the US, is about finding (and then keeping) people with appropriate skills. Wherever they work, eDisclosure people need to have their feet on two sides, one to do with legal procedures – the timelines and deadlines, the formal requirements, the resource management and the control of costs – and one to do with technology. That has its own processes which involve far more than “pushing buttons” (I use that expression because many lawyers use it as shorthand for the whole range of computer and process functions, apparently assuming that this is all you have to do).

eDisclosure (I will stick to the English term) is a new discipline, attracting people from law and from IT as well as from other areas. Legal purists dislike the term “the eDiscovery market”, but it has all the elements of a market: lawyers in corporate legal departments or in law firms have a problem to solve, and a new industry of software and services providers has sprung up to serve them, competing with each other with their differing technologies, their range of support services and, not least, the quality of the people whom they employ.

Part of that competition, as I implied in opening, is that both sides of the divide need to attract the right kind of staff. It is not unusual for people to cross the divide, moving from a software and services provider into a legal department or law firm, or vice versa.

Steph-Profile-Pic-2One such is Stephanie Barrett, who has recently joined Navigant as a managing consultant after seven years of delivering eDisclosure support at a London law firm. What is it like to make that move, I wondered. What are the similarities and differences between the roles? Is there a “dark side” and, if so, which side is it?

Chris Dale: Can you start by telling us what your role is at Navigant?

Stephanie Barrett: My role as a managing consultant at Navigant involves providing project management and consulting support, overseeing each stage of the EDRM model, along with advising on processes to maximise efficiencies and achieve value for our clients. Read the rest of this entry »


A tribute to former Senior Master Steven Whitaker

April 10, 2014

While I was away, Steven Whitaker resigned as Senior Master of the Senior Courts in the Queen’s Bench Division. Steven Whitaker’s skill lay in making procedure the servant of justice; the prevailing orthodoxy is that procedure is an end in itself, with individual justice in individual cases subordinated to efficiency at all costs.

Steven Whitaker has many friends and supporters amongst those who are interested in justice as it is defined in the overriding objective. For some of us, that interest is primarily a professional one – in the context of case management generally, of electronic disclosure specifically, and of cross-border discovery, each of which he influenced for good. For many others his actions had a direct personal effect, principally the victims of mesothelioma, whose group litigation he managed firmly with an eye to the urgency appropriate to the circumstances and for which he won praise in Lord Justice Jackson’s report. He is also a good bloke, that highest of understated English compliments.

Before I turn to my own tribute, see some of the comments which turned up on Twitter as the news of his departure broke.

SW1

Read the rest of this entry »


Launch of the Information Governance Initiative

February 19, 2014

The most interesting topic of discussion at LegalTech 2014 was not some new technology nor the proposed revisions to the Federal Rules of Civil Procedure, but the launch of the Information Governance Initiative. That is certainly not to dismiss the technology at LegalTech – Equivio launched Equivio Zoom for Information Governance in the same week as the IGI, and Recommind’s Axcelerate 5 made its appearance at LegalTech for example - but the technology is servant to the objectives, and information governance is increasingly seen as the objective which matters; that is why Equivio and Recommind are among the supporters of the IGI.

The inspiration behind the IGI comes from the strong team which has assembled at Drinker Biddle & ReathBennett Borden, Jay Brudz and Jason Baron who, with Barclay Blair of ViaLumina and others, have long been the instigators of constructive thought about information governance.

What is information governance exactly? That is addressed in the description here of IGI’s mission, which lists thirteen key components of IG. None can deny their importance; it is evident too that things will be missed – benefits and opportunities as well as risks – if the management of information sits in thirteen separate silos within a corporation. Read the rest of this entry »


Second Annual New Zealand eDiscovery Conference on 19 March 2014

November 19, 2013

New Zealand is quietly getting on with improvements to its civil procedure rules, supplementing its Discovery Rules of 2012 with a new Electronic Bundles Practice Note.

Andrew King of eDiscovery Consulting in New Zealand has announced the date for the Second Annual New Zealand eDiscovery Conference following the success of last year’s inaugural event. It is 19 March in Auckland.

There is an article about it here. It is being run in conjunction with Ernst & Young and the speakers include Browning Marean from DLA Piper US and His Honour Judge David Harvey.

I had just committed to being in the US in that week when I found about this event, and will not be able to attend – a pity, since New Zealand has been active in the development of good eDiscovery practice, and Judge Harvey is one of the leading judicial thinkers on electronic discovery, electronic evidence, and the use of technology by lawyers and courts. Here is a link to an article which introduces and links to his paper Judging e-Discovery Disputes, which he presented at the Courts Technology Conference 2013 in Baltimore (I aim to write properly about this when the tide goes out a bit).

If I cannot be in New Zealand in March, my consolation is that I may instead get to the other jurisdiction of growing interest in eDiscovery terms, Canada. I wrote recently about the document review centre which Epiq Systems have just opened in Toronto, and that and other factors suggest that a visit to Canada is well overdue.

Perhaps I will make it to New Zealand in the following year.

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Jason Baron joins the Drinker Biddle information governance and eDiscovery team

October 7, 2013

It is not often that I pay much attention to deadlines and embargoes. If the story won’t matter in a month’s time then it is not worth writing about now. Equally, I have not hitherto written much about what goes on within law firms, most of whom are merely users and consumers of electronic discovery rather than influencers and agents for change.

I make an exception today, because Drinker Biddle & Reath LLP has boosted its information governance and eDiscovery group by appointing Jason Baron as Of Counsel based in the firm’s Washington DC office. I predicted great things for the Drinker Biddle IG team, but I did not see that one coming.

Jason Baron has long been Director of Litigation at the National Archives and Records Administration (NARA).The holder of that post will always be important in the eDiscovery world simply by virtue of his or her position, with its responsibility for the enormous volumes of email and other documents which government creates.

Jason has done much beyond the call of duty. He represented NARA as co-chair of the Steering Committee of the Sedona Conference Working Group on Electronic Document Retention and Production, and has served as editor-in-chief on three Sedona commentaries. He was also a founding coordinator of the US National Institute of Standards and Technology TREC Legal Track.

I have heard him speak several times, always with authority and a refreshing new angle. It is not easy to be simultaneously authoritative and challenging – authority generally equates to responsibility, and responsibility usually implies a conventional approach; Jason makes responsibility sound interesting – something which will matter in his new role. Read the rest of this entry »


Reed Smith: 6 reasons to Insource Litigation Support

January 23, 2013

A lot of what I write suggests to law firms that their clients’ interests and, indeed, their own, may lie in delegating much of their eDiscovery / eDisclosure function to others. I usually link this to Professor Richard Susskind’s observation about how law firms must find ways of working which are quicker, cheaper, more efficient or to a higher quality “using different and new methods of working”.

Outsourcing, in its various guises, must be considered in this context, whether that be by using software which is hosted and managed by someone else or by taking advantage of the many (and competing) managed review services which can often perform this most expensive component of eDiscovery / eDisclosure to a quality and at a cost which few law firms can match.

I am careful always to make it clear that outsourcing is not the answer in every case, but is something which should be considered alongside purely internal solutions.  As the UK moves towards costs budgeting and enforced proportionality, the ability to offer alternative ways of giving disclosure becomes more important. You do not need to be driven by the rules of any one jurisdiction to want to be able to offer clients and the court a range of options. Read the rest of this entry »


CBS broadcast highlights winners and losers from technological advances

January 15, 2013

eDiscovery software provider iCONECT featured in a US television broadcast about the effect of technology advances on business and employment. As Richard Susskind publishes his new book on legal business and well-known shops disappear from the High Street, we have to accept that world is changing. There are opportunities for some.

A CBS broadcast called 60 Minutes recently included a segment on technological advances and their impact on jobs. As its title Are robots hurting job growth? implies, the broadcast was largely about the effect on employment as machines replace humans at work. The program covered some repetitive physical tasks of the kind which largely involve moving things from one place to another, but it covered also the rise of software applications in the financial, medical and legal markets, and used clips of iCONECT users to illustrate how technology has replaced the manual review of paper.

We see machines whizzing round a warehouse and delivering stock to be packed, little trucks touring hospital corridors with meals, medicines and laundry, and machines able to do repetitive tasks in factories. Positive and negative themes compete for attention: the warehouse robots each replace 1.5 employees; on the other hand, equipment like this allows the repatriation of manufacturing from China – Philips has brought the production of electric razors back to the Netherlands, for example.

On the business and professional side, we  are shown computers dispensing cash, printing airline boarding passes, and conducting stock market transactions, while IBM’s “Watson” wins the television game show “Jeopardy”. It is easy to see how modern analytical  eDiscovery tools like iCONECT’s XERA fit into this context, with a quick glimpse of a pile of cardboard filing boxes to remind us of the recent past. Read the rest of this entry »


Short eDiscovery Updates to end November 2012

December 6, 2012

This post summarises the posts on my Google Plus page during November 2012. I gave up on Google Plus after that for reasons given in my post here, and set up a new updates blog. A different form of index will be provided in due course for posts from 1 December. Read the rest of this entry »


Short eDiscovery updates to 27 October 2012

November 3, 2012

This is a summary of the posts about eDiscovery / eDisclosure on my Google Plus page between 21 and 28 October 2012. Those which relate to webinars etc which have now passed may lead to blind links. Where I know of a new address for a downloadable version I have given it.

______________________________ Read the rest of this entry »


The use of technology in regulatory investigations

November 1, 2012

Hobs Legal Docs was the sponsor of an interesting article in The Lawyer recently which emphasised the need to use technology to respond quickly to regulatory demands.

Those who find themselves overwhelmed by the timetables for eDisclosure / eDiscovery in civil litigation may like to consider the pressures faced by companies and their lawyers when a regulatory investigation turns up.  There are no nice long periods for reflection when decisions are to be made not only about the proper scope of the discovery exercise but also about the tactical and strategic implications.

Litigation searches are generally bounded by defined issues, and one can usually identify a date range and a handful of key custodians. Regulatory investigations often have no such boundaries and the question to be answered very quickly is “How deep is this pit?”. That in turn dictates the approach to be taken vis-a-vis the regulator, ranging from aggressive rebuttal to grovelling contrition, often backed (in cartel cases, for example) by a potential hurry to be the first to come clean – the “race for leniency” as one contribuotr puts it in the article.

If the use of technology like predictive coding seems optional in some cases, it is hard to see alternatives for some of these regulatory investigations. There is no time to set junior fee earners to making document trawls and it is vital to put senior lawyers to work at once to “teach the system how to look at documents in the way lawyers do” (as Mark Surguy of Eversheds put it in his Dublin speech last week). A ticking-off from a judge is a mild consequence compared with the effect on the share price and other significant things if one gets this reaction wrong. Read the rest of this entry »


Hobs Legal Docs and Relativity maximise the value of the clients’ own eDisclosure review

October 17, 2012

How much work should the clients put into their own eDisclosure / eDiscovery? We express caution at the idea that the clients should collect their own data, largely because of the risk that they will damage its integrity in the process or, at least, lay themselves open to the suggestion that they might have done. On the other hand, it is their case, their facts and their document collection, and it is right to hope for their input into the decisions as to what is important – or, to put it another way, it is rather arrogant for the lawyers to get stuck into a disclosure exercise without getting as much information as they can from the clients.

Laura Zubulake, she of the eponymous sanctions case in the US, is emphatic that her own detailed review and analysis of the documents, relying as it did on her own knowledge of her former employer, was crucial in challenging their discovery and winning her case.

Terry Harrison of Hobs Legal Docs tells an interesting story about a case in which the clients had devoted a great deal of time to their own painstaking analysis of the documents required for a case. Hobs first reduced the volume from its original 300Gb of forensically-collected data and brought it down to 40Gb. They then used Relativity Assisted Review (RAR) to help work through the rest, much aided by the work which the clients had done. Read the rest of this entry »


Short eDiscovery updates to 13 October

October 13, 2012

Most of these updates on my Google Plus site are from the week ending 6 October. After that, I was at the Masters Conference in Washington and at an event given by Symantec-Clearwell at Tower Bridge, with no time to write. I am content, in fact, to come late to my summary of these short posts – it gives s second life to subjects which would otherwise sink in the Twitter-stream.

I keep a large stock of things to write about thanks to my favourite software product, Evernote – I dip into it whenever there is a spare moment and pull out something to link to. That is fairly easy; the subsequent linking – via LinkedIn and Twitter at the time of publishing, in these updates, and (in due course) in the master list of articles on my web site, is extremely time-consuming and a major addition to my work-load. The payback comes in the form of SEO (Search Engine Optimisation) both of my own articles and of those to which I link.

______________________________ Read the rest of this entry »


Legal IQ in Washington – covering every eDiscovery subject in one place

October 12, 2012

In a previous article, Legal IQ makes a success of their Washington eDiscovery Exchange, I gave the background to Legal IQ’s recent Information Governance and eDiscovery Strategy Exchange, together with a little local colour. The latter, incidentally, is more than mere travelogue. It is perfectly possible to jet into someone else’s country, take part in a panel and jet out again, and sometimes I have to do just that. I prefer to spend a little time there, not kidding myself that I thereby become anything more than a casual visitor, but at least absorbing a little of the culture and feel of the place.

This event packed a lot into two-and-a-bit days. I could not attend every panel, but I got to most of them. What follows is what appeared to me to be the key points from those which I attended. Read the rest of this entry »


Xerox Litigation Services Webinar with Senior Master Whitaker on 15 October – Preparing for the Jackson reforms

October 5, 2012

Xerox XLS is organising a webinar called Preparing for the Jackson Reforms to take place on Monday 15 October at 4 PM BST. The participants are Senior Master Steven Whitaker, U.K. Royal Courts of Justice, Robert D. Brownstone, Esq., Technology & E-Discovery Counsel and Co-Chair, EIM Practice Group, Fenwick & West LLP and Gabriela P. Baron, Esq., Xerox Litigation Services. I am the moderator.

April 2013 brings a number of significant reforms to the management of litigation in England and Wales. Many of those concern case management, giving effect to Lord Justice Jackson’s comments in his reports about the need for judges to make full use of their powers of active management to ensure that cases proceed in line with the overriding objective.

One of Lord Justice Jackson’s themes was that clients require (and deserve) transparency and predictability of timescales and costs. A big step was taken in this direction with the eDisclosure Practice Direction 31B of 2010 and the Electronic Documents Questionnaire which came with it. That was in hand before Lord Justice Jackson’s report on litigation costs, but was consistent with the same theme of active management and predictability.

The 2013 reforms, amongst other things, extend the obligation to exchange information to a wider range of cases, give the court a clearer power to order disclosure appropriate to the case by replacing the present default of standard disclosure with a “menu option” of orders which might be made, and provide for costs management in the form of budgets to be agreed and / or ordered by the court.

Senior Master Whitaker led the working party which devised the practice direction and is a practical authority on its implementation – “practical” in the sense that he is an active case managing judge. Although the rules obviously apply only in England and Wales, the principles which they set out apply more widely. Robert Brownstone and Gabriela Baron will help us draw wider messages from the proposed new rules which are of importance to judges, lawyers and clients in any jurisdiction which requires discovery of documents.

The registration page is here.

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ILTA 2012 Part 5 – Future ILTA events

October 1, 2012

This is the last of my series of articles about the ILTA conference in Washington in August. What else is ILTA doing around the world?

ILTA has recently partnered with ALM, the owners of LegalTech. Apart from LegalTech itself, the next of these events is LegalTech Asia 2013 on March 4-5 at the JW Marriott in Hong Kong. I intend to be there.

ILTA also runs an event in London each year. Called ILTA Insight, this was a deliberately modest one-day event until this year when, again in partnership with ALM, ILTA put on a two-day event – the only one in the UK which attempts to bring eDiscovery / eDisclosure and the other components of legal technology together under one roof. We do not yet have a date for ILTA Insight 2013, but preliminary discussions suggest that it will be an attractive show for exhibitors and delegates alike, and across the whole legal IT field including eDisclosure / eDiscovery.

You do not need to wait until then. Regional Vice President Gareth Ash of Allen & Overy is keen to expand the membership of ILTA in the UK and Europe. As I suggested in an earlier article, if membership has benefits for Allen & Overy, Wragges and Bond Pearce then it has potential benefits for you, whatever the size of your firm. Why not drop Gareth Ash a line?

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ILTA 2012 Part 4 – The end of the show: the ILTA awards dinner

September 17, 2012

This is the fourth of five articles about ILTA 2012. Whatever may happen at other awards dinners, this one celebrates the people who lead by an example in an industry which needs them.

ILTA ends with a big dinner, with a comedian and awards. Between you and me, those elements usually add up to an event which I would cross the Atlantic to avoid. For the ILTA Peer Awards dinner, however, I am always prepared to stay an extra night when I could be asleep on an aeroplane heading home.

The draw is not generally the food or the comedian, though both were good. I go to support the principle that ILTA is a peer-driven organisation which encourages those who have the expertise to share it with others, and I am prepared to sit through the sonorous intonations of the announcer on the grandiloquent linking videos to see individuals, firms and companies singled out for taking a lead. The UK was up there – Bond Pearce was shortlisted for a couple of awards and Vince Neicho of Allen & Overy was in the top three for Litigation and Practice Support Champion, an award which went to Paige Hunt Wojcik of Perkins Cole. Read the rest of this entry »


ILTA 2012 Part 2 – My own ILTA Conference

September 11, 2012

This is the second of five posts about ILTA 2012. In other posts I talk generally about the benefits of going to ILTA’s big conference, about some of the themes which emerged and about the ILTA Peer awards. This one is largely about my own time there.

I arrived on Saturday, partly because the air fares are lower then and partly to play myself in gently. I like watching conferences come to life, venues gradually filling up and empty spaces turning into a stage set with a big cast. The putative UK ILTA virgin to whom this post is directed would similarly appreciate a gentle start to an event which, once under way, proceeds at an unrelenting pace.

I went to only two sessions. One involved eDiscovery/eDisclosure experts from the US, the UK (Vince Neicho from Allen & Overy), Australia and Canada, which set out succinctly the developments in each jurisdiction. I hope to write about this separately.

The other was billed as The ESI debate is on! and was a free-form discussion whose participants were described as “passionate and cantankerous”. That sounded about right, for I was one of them. The others were George Socha and Patrick Oot, moderated by Browning Marean of DLA Piper US. You catch the flavour of it from the fact that the first question was framed as a debating motion, that “US discovery is much better than UK eDisclosure”.  I felt it necessary to preface my opposition to this motion by making it clear that, notwithstanding anything I was about to say, I was in favour of most things American except its eDiscovery and its coffee. Read the rest of this entry »


ILTA 2012 Part 1 – Why you might want to go to ILTA next year

September 10, 2012

This is the first of five articles about ILTA 2012 in Washington D.C. Why do we go, what is it like, what conclusions can one draw about the market? The main aim is to encourage you to go next year, and to find out in the mean time what ILTA can offer you apart from its big conference.

If asked to explain what their father does, my children generally say “He’s a blogger”, ducking the inevitable follow-on question “No, I mean what does he do for work?”. If they were to add that he wanders around hotel lobbies having brief encounters with several people in succession, that does not make it clearer. That, however, was my major benefit at the annual conference of the International Legal Technology Association, ILTA, in Washington D.C. at the end of August. Everyone is there.

There is more to ILTA’s annual conference than that of course, just as there is more to ILTA than its annual conference. You can make of it what you like: seeing technology solutions, attending sessions led by people who have been down that roll-out path ahead of you, hearing about the pros and cons of a proposed investment from those who have been there, or just talking to others. When you have done all that (and this is a hard-working conference for all its leisure elements) there is entertainment of pretty well every kind.

I do not propose in this post to recite all the people I met or the products which I saw – apart from the obvious risk of drawing fire from those whom I fail to mention (it happens), I value my readership, and nothing drives the audience away faster than lists. ILTA is not a place for big product launches, nor do you get startling pronouncements from influential figures. It is more a place for knowledge-sharing and, as one law firm person put it to me, for spending time with the more thoughtful people from the suppliers.

My purpose here is to give some impression of what it is like to attend ILTA’s big conference, with the aim of encouraging greater attendance from the UK (and anywhere else) next year. I will mention a couple of sessions and pass on some general ideas which came my way in the course of my many discussions, but the main aim is to try and convey why it is important to be here, and not just for Americans. Read the rest of this entry »


eDiscovery conferences coming up all over the place

August 21, 2012

I have updated the list of pending conferences on my web site, adding new ones and correcting dates, venues and URLs of those which have changed.

I have included some which I am not going to – the EDI Leadership Summit and Relativity Fest 2012 were originally ruled out by events which have now dropped off my calendar. I wanted very much to go to both of them, but my mother’s illness (she seems to be recovering, thank you to all those who have asked) argues against adding more events to the calendar whilst she is still in hospital.

First up is ILTA 2012 ac2dc, celebrating its 35th event anniversary next week. The venue is again the vast Gaylord National Resort and Conference Centre outside Washington DC, a place which manages to feel strangely intimate despite its vastness, at least during this most friendly of eDiscovery conferences.

ILTA prides itself on its peer-to-peer support ethos which gives it a different flavour to other conferences. As last year, it provides a mobile app which helps you to navigate the packed program. I am taking part in a session which deliberately has no specific subject – it is called The ESI Debate Is On! (Hashtag #LPSPG6) and its description reads “There has recently been much debate over eDiscovery topics, and this session is sure to touch upon them all! Join our eDiscovery industry leaders as they discuss hot topics that are not without controversy.”

The other panel members are Patrick Oot and George Socha. Browning Marean of DLA Piper is the moderator, so expect variety, unconventionality and, with any luck, something for us all to disagree about.

Although this is the longest conference of the year, it never seems quite long enough to see everybody. For me, it is an opportunity to catch up with those who sponsor the e-Disclosure Information Project, whether by appointment or by bumping into them.

The whole thing is pure pleasure so far as I am concerned, and being there for nearly a week takes some of the sting out of the tiresomeness of the travelling.

I will be writing separately about the other forthcoming conferences over the next few days.

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My Google Plus eDiscovery posts to 14 August

August 19, 2012

A longer list than usual, partly because many interesting things came along and partly because I was called away for over a week before I had the chance to list them.

Law Society Gazette – No replacement yet for £10m High Court IT failure

APT Search white paper on recruitment and eDiscovery

Dangleboris – how to get the world to do your PR for you

Clarification of the DPP’s role in the Twitter Joke Trial

Nuix: Taming information with eDiscovery

Rob Robinson: eDiscovery vendors on Twitter

eDJ Group snaps up Marilyn Gladden for eDiscovery channel media services

Commonwealth Legal becomes a Relativity Consulting Partner

Greg Buckles of eDJ on CVEDR – Monkeys and Magistrates in Monterey

ESIBytes Recording - Carmel Valley E-Discovery Judicial Panel on Predictive Coding

The Irish Times - Internet is debasing our public discourse

The Lawyer: Scotland to compete with Northern Ireland as low-cost law centre

Kevin Nichols on eDJ: The CVeDR – A Different Type of eDiscovery Conference

First Advantage Litigation Consulting integrates audio discovery and conceptual search, and enhances analytics in Global RPM 5.0

Epiq Systems panel debate: judicial attitudes to technology assisted review

Nuix webinar: Deep dive into intelligent investigation with Nuix 4

You may like this Olympic parody…

Thomson Reuters on FTI survey: lawyers see benefits of computer coding, with caveats

kCura at No 15 out of 100 in Forbes’ list of Chicago’s top 100 digital companies

The relationship between keyword search and technology assisted review – Sheila Mackay of Xerox

Video - Proactive Information Governance with Nuix

Blog post re-run: Conor Crowley’s guidance on the Duty of Competence in e-Discovery applies beyond the US

While other politicians struggle to speak comprehensible English, Boris recites an Olympic ode in Latin

Guy Burgess on the NZ Law and technology blog: When will New Zealand get e-filing?

Simon Price of Recommind – Concept over keywords – why search still matters for law firms

Barry Murphy of eDJ in discussion with Mary Ann Benson of Epiq Systems: Tangible Examples of TAR

Epiq Systems Opens Hong Kong Document Review Centre

The Lawyer: First LIBOR action is in the Birmingham Mercantile Court

Howard Sklar of Recommind: Are Seed Sets the New Keyword?

Craig Ball: Train, Don’t Cull, Using keywords

Craig Ball (again), this time on the safe-keeping and recovery of irreplaceable data

Millnet’s Charles Holloway on a devilish problem

Guidance Software E-Discovery Resource Center

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Recommind predictive coding webinar: I interview Senior Master Whitaker

August 14, 2012

A reminder of my recent interview, organised by Recommind and filmed at the top of the Gherkin, with Senior Master Whitaker. Our subject was the acceptability of predictive coding in UK litigation. Master Whitaker knows more about this than any UK judge and is himself responsible for case management of London Queen’s Bench cases at the stage when the question falls to be discussed.

His views are worth hearing, and this is a painless way to receive them.

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What does your phone say about you? AccessData’s Mobile Phone Examiner Plus (MPE+)

August 3, 2012

I do not know whether it is shrewd marketing on the part of AccessData or a coincidence, but the press announcement of their Mobile Phone Examiner Plus (MPE+) came to my attention on the same day as an article on Zeit Online dating from March 2011 with the title Betrayed by our own data.

The latter illustrates the enormous quantity of information which we give away merely by having our mobile phones turned on all the time – thousands of pieces of data which, when added together and, perhaps, aggregated with information from other sources, presents the complete story of our lives, much of it obtained legitimately and with our own consent.

The AccessData product provides the means by which lawyers may get into that information for the purposes of making or rebutting allegations in litigation and for similar purposes. This goes far beyond the implications in criminal proceedings or through the actions of security services. Many a civil case – to do with employer-employee relations, matrimonial disputes, IP theft and just simple cases of disagreement and conflicting evidence in straightforward contract, negligence or accident claims – may be resolved by examination of the mobile phone of a party or a witness.

The German Green politician Malte Spitz clocked up 35,831 rows of information in a spreadsheet about his mobile phone data between August 2009 and February 2010. If you add this to his non-phone data and externally available information, you have a more or less complete picture of his life. The witness who denies knowing someone or who asserts that he or she was or was not in a particular place at a particular time, does not stand a chance when evidence collected from his or her mobile phone shows otherwise.

That is the point of AccessData’s new product.

It is, no doubt, chilling to know that all this information is available. It is equally chilling, to my eye, that so many lawyers simply do not know that information of this kind is both available and fits within the definition of a discoverable / disclosable document by the definition of a document in most common law countries. But if that is bad enough in the context of civil litigation, how much worse is it when no one spots that this information may convict or acquit someone charged with a criminal offence?

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Da Silva Moore Plaintiffs File Objection to denial of recusal motion

July 11, 2012

Whatever else one might say about the lawyers for the Da Silva Moore plaintiffs, you can’t deny that they are good at volume – yards of words pour out at every opportunity, and while few of them seem to have much bearing on the case (remind me what that was about again?), they must be due for some kind of prize for the sheer mass of words they can get down in a given time.

Have you read their 500 page Objection to Judge Peck’s denial of their recusal Motion? No, nor have I.

K&L Gates (where would be be without their always timely and succinct commentaries?) have put up a link to the Rule 72(A) Objection itself, and told us where to find the declaration in support of it. Let me know if you find anything interesting in it.

Rob Robinson has updated his extremely useful collection of the formal documents under the heading Peck, Parties and Predictive Coding.

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Recent posts on my Google Plus page

July 11, 2012

I give below links to my recent posts on my Google Plus page. The last few weeks have been a particularly fruitful time in eDiscovery, both in the UK and elsewhere, and I have a stockpile of other articles and links which I hope to add to this collection.

Those of you interested in SEO (Search Engine Optimisation) may like to know that these links, when added to Google’s  indexing power over its “own” data, generally perform very well in Google searches. The value of these links, therefore, lies in more than merely pointing you to recent interesting posts; it has a long-term purpose as well.

Photographs from the Epiq Systems Judicial Panel in London on 27 June 2012

Federal Judicial Center publishes 2nd Edition of Managing Discovery of Electronic Information: A Pocket Guide for Judges

Resources About LawTechCamp London 2012 on the Legal Informatics Blog

3 steps to becoming a “predictive coding guru” – Inside Counsel

Are law firms investing in the wrong IT resources – if they are investing at all?

Information governance in UK civil litigation – how to reduce legal risk and cost – a paper by me for IBM

Deloitte survey shows business unworried by UK Bribery Act

LegalFutures reports on Richard Susskind vision for the future at LawTech Camp London

Symantec: The Increasing Importance of Cross-Border eDiscovery and Data Protection Awareness

Cowen Group reports on Nuix Information Governance Forum – with Vimeo

The Gherkin from the River Thames on a Not Working Weekend

Investigations company Proven buys Palmer Legal Technologies

ABA Model Rules to consider the need for lawyers to have technology skills

Good summary from Millnet of Judge Brown’s NLJ articles on costs control

Case In Point from CaseCentral – The Scream

Mr Justice Akenhead to speak to the SCL on Technology and Dispute Resolution on 3 October

Recommind: Predictive Coding – Chris Dale in conversation with Master Whitaker

Bad Writing Tips on Twitter

Nuix Information Governance Forum at Palm Beach

We must keep fighting thick policemen who arrest photographers

Are “Drive-By” Rule 26(f) Meetings the Norm?

NoW Hackgate though a (US) eDiscovery lens

EU Commission under fire for its data protection reforms

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Debra Logan at the Nuix Information Governance Forum – why Information Governance fails and how to make it succeed

July 4, 2012

This is a continuation of a series of posts about the Nuix Information Governance Forum, held in June at Palm Beach in Florida.

Debra Logan of Gartner was the keynote speaker. Her speech was all meat, and the only acceptable way of reporting it is to pick what appear to be to me to be her top 10 points. These were, in no particular order, as follows:

We have gone beyond the ability of most companies even to know what they have got. Storage is not cheap and is only the beginning of the expense. We have to compute these costs, the obvious ones and the less obvious ones, before we can begin to apply for budget for new projects.

We want more information and we want it now, but we cannot make decisions with it. How do you get attention when the detail of information governance is yet more information and when no one can explain information governance to decision-makers in a way which matters to them? We need an impasse-breaker. Read the rest of this entry »


Whither did the defendant take the witness stand?

July 2, 2012

The Times has an entertaining column on Saturdays in which it fields complaints made by its readers about its manner of expression (as distinct from purely factual errors).  Not infrequently, the complaints relate to the use of American terms in place of English ones.

This week’s crop includes a complaint, from a High Court judge no less, reported thus:

“Must we behave as though we are American? … ‘Mr Nadir took the witness stand’ could so easily have read ‘Mr Nadir went into the witness box’, and been accurate too.”

The Times accepted the rebuke, as it should. Quite apart from anything else, the original report made it sound as if Asil Nadir had compounded the alleged offences which brought him to court with the additional crime of nicking the fixtures and fittings, calling up a picture of him dragging a heavy piece of furniture along the echoing corridors of the Old Bailey.

There was a double offence here, of course – even if one were to accept that witnesses have stands like cakes and hats do, the verb “take” has thirteen different meanings in my dictionary, none of them a synonym for “went into” or “stood in”. You can take a wallet, a bus, a walk or a shower; you can take offence, a liberty, an oath or a look; you can take in, take off, take up, take away or take out; you can even take a stand – but not a witness stand, not in English, anyway.

American representations of courtrooms in films and on television are probably to blame for this sloppy appropriation into English of foreign-language expressions and foreign customs. Another common one is the pictures of those sweet little mallets which American judges use when they want to attract attention to themselves.  I think that the gavel as visual cliché has at last disappeared from UK-facing marketing literature – it took about 20 years for US software marketing departments to realise that our judges rely on a steely eye rather than an auctioneer’s prop to get attention.

The Times has worse Americanisms than that to root out. I recently came across in its pages the adverbial use of “likely”, as in “it will likely rain”, which is as ghastly a misuse of language as one will find anywhere.

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NeverSeconds, Leveson and the Snoopers’ Charter add variety to the eDiscovery world

June 20, 2012

If you wonder why I spent Saturday pouring out articles, it is because Saturday was the only day last week which did not involve a plane, a train, a seminar or a recording of some kind. The rest of the eDiscovery / eDisclosure world does not, alas, stand still just because I am on the run, and there is a lot of useful and interesting stuff going on. Apart from eDiscovery, I am interested in liberty of the subject, freedom of speech and marketing in the broader sense of public image, and the UK has given us some splendid examples of cock-ups in each of these areas in the past few days which provide amusement value and object-lessons.

May and June are always busy times anyway. As I write this, I am in the US for the fourth time since the end of April. I have yet to finish writing up the Asia eDiscovery Exchange 2012 in Hong Kong a few days ago. In between, I have been to Leeds for a three-hour CPD seminar and taken part in a London talk with HHJ Simon Brown QC and Nigel Murray of Huron Legal, which I will write about separately.

I am at The Breakers in Palm Beach, Florida for the Nuix Information Governance Leadership Forum which opened yesterday with a keynote speech from Debra Logan, Distinguished Gartner Analyst which, again, I will write about in due course. The Breakers itself is quite remarkable. Its core is a copy, as opposed to the usual pastiche, of the Palazzo Carrega-Cataldi in Genoa, and it shows that monumental scale is not incompatible with restrained good taste. Read the rest of this entry »


Epiq Systems research on eDiscovery readiness at US and European companies

June 16, 2012

Epiq Systems, which provides managed technology services worldwide for lawyers and their clients, has commissioned a report about eDiscovery readiness at companies in the US, France, Germany and the UK.  It is important, every so often, to get some metrics behind the anecdotal suggestions that many companies have not given this subject the attention it deserves.

Why does it deserve attention? Litigation is but one of the reasons why companies need to access and produce data and documents in a hurry. Increasingly, the pressure  comes from regulators and, more specifically, from the  fear that a regulator may appear at any moment and demand information. Reports last year from both the US and the UK suggested that many companies do not know even what they are spending annually on reacting to eDiscovery demands one of one kind or another.

The report commissioned by Epiq looks at various sectors and at different sizes of company within each sector. The results, inevitably, vary from jurisdiction to jurisdiction and from sector to sector, presumably reflecting the perceived risk. Read the rest of this entry »


Judge Peck comes out fighting and denies Da Silva Moore recusal motion

June 16, 2012

US Magistrate Judge Andrew Peck yesterday denied the Da Silva Moore plaintiffs’ recusal motion in robust terms. The S.D.N.Y. Blog pulls out the best bits from the ruling and provides a link to it.

The opinion is measured, analytical and, to my eyes, unanswerable. Most commentators (that is, all bar one, apparently) viewed the plaintiffs’ tactics with a mixture of bewilderment and contempt. Judge Peck keeps his cool, facing down each allegation in turn, and leaving any objective reader with a clear picture of plaintiffs (or, rather, their lawyers – one wonders what the plaintiffs themselves think of all this) who, disliking the outcome of the course they had agreed to, thought they would have a go at displacing the judge in the hope of finding themselves a more amenable one.

This expensive and extravagant side-show has nothing to do with the merits of predictive coding, nothing to do with the issues in dispute and nothing to do with the “just, speedy and inexpensive” requirements of Rule 1 of the Federal Rules of Civil Procedure. Judge Peck’s important messages about proportionality, about cooperation, and about the duty of parties and the court to find the best way of managing cases, have all been drowned. As I have asked before, can anyone remember what this case is actually about? Read the rest of this entry »


Hobs Legal Docs adds Competition work to its eDisclosure skill-set

June 15, 2012

I mentioned a while back that London legal services provider Hobs Legal Docs had taken on Patrick Rowan from Ernst & Young as sales director. The press release is here but, as I often do with press releases, I have waited for the opportunity to speak to Patrick Rowan before writing about the appointment.

Regulatory work in general, and Competition work in particular, requires a degree of urgent attention to the documents in a way which makes most litigation look leisurely. Whether the trigger is a dawn raid or an enquiring letter, a company and its lawyers have very little time to establish what the position is and to make informed decisions about it.  Since the Akzo Nobel decision on in-house privilege, the imperative is to involve outside lawyers immediately.

Companies like Hobs are well used to collecting data in a hurry, processing it and getting it quickly under the lawyers’ eyes – it is often a revelation to the lawyers that they can start looking at key documents almost immediately, without waiting for full processing to take place. The technology is the same – see Hobs partner list for the companies whose technology might be used. There are obvious differences – a company facing a regulatory investigation does not have the same options to settle or to choose the issues on which to focus. The lawyers from whom the instructions come are also, it seems, a slightly different breed to commercial litigators, probably as a result of the permanent need to react quickly and decisively. Read the rest of this entry »


Predictive coding case study with Millnet and Eversheds

May 31, 2012

I wrote recently about a short podcast about predictive coding which I made with James Moeskops of Millnet.  We have now done another one, this time with Dominic Lacey and Jamie Tanner of Eversheds.

The context was provided by an exercise which Millnet did with Eversheds in a Commercial Court matter for which predictive coding was seen as the most practical and cost-effective way of dealing with very large volumes of documents. It was one of the exercises which I wrote about in my article Two predictive coding case studies emphasise time and cost savings. The motivation to use predictive coding software (Equivio Relevance in this case), came, as Dominic Lacey explains, from the very high number of false positives which were returned by keyword searches.

Eversheds is one of the more forward-thinking firms in the use of technology for litigation and for other matters where large document volumes are encountered, and the interview, which I moderated, was a good way of hearing about it from the horse’s mouth.

Short podcasts like this – it runs for only 19 minutes – provide a painless way of absorbing news and information. You can link to the podcast from Millnet’s page about it here. That links also to a transcript of the interview and to Millnet’s own article about the case study.

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Hobs Legal Docs takes Relativity and makes a senior appointment

May 31, 2012

London-based litigation and document management provider Hobs Legal Docs has made two significant announcements whilst I have been on my travels.

The first was the appointment of Patrick Rowan as Sales Director and as a Board Director of Hobs Legal Docs Ltd. Patrick comes from Ernst & Young whence he brings skills and experience in eDiscovery and eDisclosure as it arises in Competition and Regulatory matters, as well as experience in forensics data analytics. The Hobs press release about Patrick Rowan’s appointment is here.

I have yet to meet up or speak with Patrick since his appointment, as I like to do when appointments are made at this level, and hope to remedy that soon.

The other news from Hobs is that it has been appointed a Relativity Premium Hosting Partner, as you can see from the Hobs press release here and the kCura one here.  I was asked at a seminar this week if I would point the delegates to providers of software and services.  I gave my usual answer which is that the list of logos of those who support the eDisclosure Information Project is a good place to start, whilst adding in the interests of objectivity that there are other players in the market. Providers like Hobs bring a wide range of choices, together with the consultative skills and experience to help point users towards the right solution for their particular needs.

As you can see from Hobs Partners page, there is some overlap between their partners and my sponsors, as Relativity joins Westlaw CaseLogistix, Guidance Software, Clearwell and Equivio amongst others on the list.

It is worth reminding you that Hobs has a Manchester office and that all these applications, together with Hobs’ ability to manage paper disclosure in tandem with electronic disclosure, are available from there. I was in Manchester with Terry Harrison of Hobs in January (see eDisclosure seminar in Manchester with Hobs Legal Docs) and hope to be back there, this time on my own, later in the year. My next trip north is to Leeds on 13 June for MBL Seminars, something I will write about separately.

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Getting it right second time

May 11, 2012

Although I made it clear in my article Scattershot innuendo and muck that I was indifferent to the outcome of the arguments on the merits in Da Silva Moore, that is no excuse for substituting the word “Plaintiffs” for “Defendants” in the heading of an article whose entire purpose was to draw attention to the way in which one party is getting all the airtime in the commentary on the case.

Perhaps I was subconsciously proving my own point.  Perhaps the most sensible conclusion is that 4.00am on a Saturday morning is not the best time to think up article headings.

I am not too bothered about being defensive on this, but if I were, I would observe that it has taken until today for a sharp-eyed reader to spot my error. The tenor of the article was clear enough.

Changing the titles of articles is a pain, because they go through into the page names, and correcting them fouls up the SEO and breaks third-party links. It seemed, nevertheless, the right thing to do on this occasion.


Barrister video on the 7 Deadly Sins of witness statements

May 4, 2012

I am inevitably interested in the ways in which ideas and information are passed to and by lawyers, since they are my target audience and I live by reaching them by whatever means come to hand. It is unsurprising that a barrister can make a video in which he or she passes on knowledge and skills – they are, after all, practiced in articulate oral expression of facts and arguments. It is good to find one who has actually made use of one form of new media, and then published it on another (his blog).

Those of us who follow Seán Jones QC  of 11 Kings Bench Walk on Twitter @seanjones11kbw do so for his dry and self-deprecating humour as much as anything. He is a senior employment barrister, and if I employed anyone or was employed (neither being conditions I aspire to), he is the one I would want on my side if a dispute arose.  That I reach such a conclusion entirely on the strength of a few tweets illustrates the power of social media as a marketing tool.

Seán Jones muttered something on Twitter recently about going off to make a video, and we now have the results, Witness Statements 7 Deadly Sins. How promising does this look, we ask ourselves, as we see that the video is of the talking head variety and delivered by a man who describes himself as having “a magnificent set of jowls and a grating nasal tone”. Even if this was a fair self-judgement (it is not), you would soon forget it. Read the rest of this entry »


ILTA Insight in London – Beyond the Traditional Law Firm IT – 8 and 9 May

May 1, 2012

The next event iILTA Insight 2012n which I am involved is ILTA Insight in London on 8 and 9 May. This year it runs over two days and is produced in conjunction with LegalTech, a division of ALM.

I am moderating a panel on predictive coding on 8 May. The panel members are Senior Master Whitaker, Greg Wildisen of Epiq Systems, Vince Neicho of Allen & Overy and Browning Marean of DLA Piper US.

The focus of our panel is on the use of predictive coding by lawyers and the likely reaction of the courts, under the heading Litigation and Practice Support. A second session on Day 2 will look more closely at the technical aspects on the Emerging Technologies track.

The event itself has a much wider remit than eDiscovery. Other main topic headings include Efficiency and Strategy, Information Management, Innovation and Strategy, and Service and Process Support. Keynote speeches cover Cyber Crime and the Economic Outlook 2012.

There are still some places for this event. This link takes you to the right place to book one of them.

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The Dominic Regan podcast for IQPC’s London Summit

April 20, 2012

I wrote recently about the podcasts which IQPC have put on their website as tasters for their Information Governance and eDisclosure Summit which takes place in London between 14 and 16 May.

You may be interested in another one which is available from here without having to complete the registration form.

It is one which I recorded with Professor Dominic Regan with the title Why the Jackson Reforms mean the biggest ever upheaval for litigation. I have already published a transcript of this interview but those who prefer to listen rather than read can now hear this short recording.

This is complemented by an article written by Dominic Regan called Lord Justice Jackson has no regrets over his proposal on civil litigation costs, which he wants to see implemented next April “in their entirety”.

Dominic Regan is one of the many well-known speakers at the Summit and his talk is likely to be a major attraction for those who want to know how the practice and procedure of litigation is likely to develop.

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My Google Plus eDiscovery and eDisclosure posts to 6 April

April 9, 2012

A two-day absence in a place where cellular data has yet to penetrate put me behind in the routine task of picking up useful articles and putting links to them on my Google Plus page.

Google’s enthusiasm for rolling out new features seems to have outstripped both its ability to handle the basics and its provision of any form of usable support. I am unable to edit posts at the moment – any attempt to save changes gives the message There was a problem saving your page. Please try again. Trying again yields no better answer.

The sunny uplands of Google’s formal help sections do not appear to admit of the possibility of problems. The alternative is a messy forum in which every user dumps questions and issues. An ordinary Google search may turn up the words you are looking for, but then just puts you at the top of an unsorted, unfiltered list of hundreds of questions, none of which ever seems to be answered. The only way to correct the error is to copy the contents to a new post, correct the error (in my case just a missing apostrophe), save the new one and delete the original.

The more positive side, justifying even this tiresomeness, is that the links from here index well in Google. This week’s G+ posts, excluding those which link back to my own Blog, are:

Joanna Goodman on the Commercial Litigation Association (CLAN) conference in London

FCPA expert Michael Volkov move to “entrepreneurial” LeClairRyan

Ten years of eDiscovery mergers, acquisitions and investments

Are you a Data Controller or a Data Processor? It might be helpful to know

Judge Waxse sets an evidential hearing on hearing of obviously inadequate search

A window into eDiscovery disputes – Day 2 of the Kleen Products case

CY4OR seeks Champions for Sales and Marketing Roles in the North-West

ASIC signs Three-Year Contract with Nuix for Electronic Investigation Software

Predictive Coding – its Providers and its Synonyms from Rob Robinson

Guidance Software launches EnCase Forensic 7.03 for Faster, More Efficient Investigations

Google Apps Vault Brings Information Governance to Google Apps

Law Firms take note: Nikon takes Symantec’s Clearwell eDiscovery Platform in house

__________ Read the rest of this entry »


Machine learning to anticipate eDiscovery not just to manage it

April 2, 2012

Jim Shook of EMC takes us back to the stage before discovery. The advanced technology used for dealing reactively with discovery requests has its place at a much earlier stage in the process.

Judge Peck’s opinion in Da silva Moore passes into a kind of limbo pending its review by Federal Judge Carter.  The analysis of the present position has been exhaustive and, to some extent, repetitive, and those of us who comment on these things have little more to say until Judge Carter does his stuff. We are waiting, too, for the next step in the Kleen Products case before Judge Nolan. It is a bit like one of those uneasy patches on the French battlefields of the Great War as everyone waited for the whistle signalling the next big push.

It is a good opportunity, perhaps, to look in a more rounded way at the broad class of technology which, whether you call it predictive coding, technology-assisted review, machine learning, or whatever, connotes generally the idea that computers learn from a mixture of rules and previous inputs  in order to “predict” what should be done with documents, classes of documents or, perhaps, whole servers full of documents.  The technology being developed for this, and for similar functions which have nothing to do with discovery,  has many of the same characteristics  and objectives as the pure discovery applications. Marketing intelligence, news sites which point you to related articles, shopping sites which suggest alternative purchases and (as Judge Peck noted) anti-virus software, all include elements of this kind of prediction. Read the rest of this entry »


Podcasts give tasters for IQPC’s Information Governance and eDisclosure Summit in London

April 2, 2012

Patrick Oot of the Electronic Discovery Institute and the SEC is interviewed by Jim Vint of Navigant in a podcast which anticipates some of the subjects which will come up at IQPC’s London Summit between 14 and 16 May

The list of speakers for IQPC’s 7th Annual Information Governance and eDisclosure Summit is pretty good bait on its own, even without looking at the agendas for the Pre-Conference Workshops, Day 1 and Day 2. Even if you do not know the names of the individuals (and you will certainly know some of them) the job titles and the company names make it clear that you will be getting ideas and recommendations from the top.

IQPC has recorded some podcasts in which speakers talk about their subjects. Although these are obviously intended as trailers for the conference sessions, they serve also as useful sources of information in their own right – I interviewed Professor Dominic Regan, for example, and what he said formed the basis for an article which I called Professor Dominic Regan on why the Jackson Reforms mean the biggest ever upheaval for UK litigation. Read the rest of this entry »


Cross-Border Discovery – Federal Judge makes a monkey of the cheese-eaters

March 29, 2012

The collision between US discovery requirements and EU privacy and data protection laws is a long-running story of mutual incomprehension on which the formal conflict of laws is merely an overlay. US courts and regulators expect every last document to be produced according to a test of “relevance” which is cast as widely as possible, unconstrained (to European eyes, at least) by any sense of proportionality or necessity, even before you reach privacy, data protection and specific restrictions such as French blocking statutes.

There is a yet deeper layer of mutual antipathy, at some levels at least, between France and the US, derived in part from differing recollections of the country’s respective contributions to the outcome of the Second World War, and to the position taken by France in various subsequent conflicts including their attitude to NATO during the Cold War, the bombing of Libya in 1986 and, most recently, the invasion of Iraq.  Given the matters of high diplomatic importance which give rise to this US picture of the French, it is perhaps curious that the American view should find its most eloquent expression in words uttered by Groundskeeper Willie in a 1995 episode of The Simpsons; forced to multitask as a French teacher, he hailed his class with “Bonjour, you cheese-eating surrender monkeys.” The expression caught on, exacerbating the idea that the French may talk a lot but rarely defend their position. This extends, in US eyes, to the enforcement of their Blocking Statute. Read the rest of this entry »


Charity Quiz Night for The Children’s Trust on 3 May

March 26, 2012

Jack Bond, litigation support specialist at Dewey & LeBoeuf in London is organising a charity Quiz Night on 3 May in support of The Children’s Trust and in memory of his daughter, Sarah.

He is getting together teams in tables of six from people in firms, companies and service providers whose work involves litigation support, eDisclosure, translation and the like. Those booked in already include providers including:

Clearwell
Control Risks
CY4OR
DLR Legal
Epiq
Ernst & Young
First Advantage
FTI
Geotext
Millnet
Transperfect
Unified

and law firms DAC, Plexxus and Seymours.

The venue is Balls Bros, Mark Lane and the time is 6.30pm for 7.00pm on 3 May.

Table are still available. Food will cost approximately £10 per head and there is a minimum donation of £100 per table.

This sounds like an enjoyable way to do some good for a worthy cause. If you are interested contact Jack Bond JBOND@deweyleboeuf.com

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OrcaTec’s Herb Roitblat gets the measure of the Da Silva Moore Plaintiffs

March 26, 2012

If you are not yet familiar with the plaintiffs’ arguments about predictive coding (I use the word “about” in its broadest sense, since much of the argument appears to be about some completely different agenda) in Da Silva Moore v. Publicis Groupe & MSL Group, Rob Robinson has helpfully gathered together the formal documents in one place.

In my 7 March article Judge Peck’s Predictive Coding Opinion – Reporting the Reaction, I picked out points made by various of the better-known commentators on the then state of play in the Da Silva Moore Predictive Coding dispute. I ended that article by saying “I can think of two or three commentators, so far silent, whose views will be worth having.”  Today brings us the expected article from Herb Roitblat, CTO and Chief Scientist for OrcaTec, one of those whose opinion I had in mind.

Its title, Da Silva Moore Plaintiffs Slash and Burn their Way Through eDiscovery, carries with it the implication that there is more at stake here than the outcome in this particular case. It also gives a view of the plaintiffs which is shared by many, and which Herb expresses more eloquently than any of us. Read the rest of this entry »


Xerox XLS reminds us that technology assisted review works alongside other search tools

March 25, 2012

My decision to stop reporting every additional layer of comment on Judge Peck’s Da Silva Moore Opinion (see Closing down the Da Silva Moore discussion for now) was made in part because of the diminishing returns we were getting from the focus on this one case, and partly because it was becoming clouded with agendas remote from the technology and from the wider issues addressed by Judge Peck in his Opinion. There is room, however, for some straight up-and-down discussion which might otherwise be crowded out.

An example of this is an article in Metropolitan Corporate Counsel headed Can Technology-Assisted Review Coexist with Strategic Search? This is an interview with Amanda Jones, Senior Research Consultant with Xerox Litigation Services. As its heading implies, the article reminds us that the high-end search tools known variously as predictive coding, technology assisted review et al, is but one of the search tools which are available to help with the identification of the documents which matter and the relegation of those which matter less or which do not matter at all. Read the rest of this entry »


Getting the eDiscovery word out there with WordPress and Google Plus

March 9, 2012

One does not have to be obsessive about web rankings to be interested in the reach of one’s blog posts, particularly in an industry which constantly evolves – or, as recently, takes the occasional big jump. Can one be heard beyond one’s regular readers, in an area of business in which everyone has something to shout about?

Idle curiosity made me do a search yesterday morning on Google.com for judge peck da silva moore. I was pleased to see that an article of mine – published less than 24 hours previously and in competition with many US articles – appeared on the first page of search results. A search for peck predictive coding, again in Google.com, had my article at the top.

A post by Millnet’s Charles Holloway (or, strictly, the home page of Millnet’s blog) also appeared on the first page of the first of those searches. Amongst the things Charles and I have in common (being English solicitors with an interest in US eDiscovery is a prerequisite for what I am talking about) is our use of WordPress as our blogging platform. I chose WordPress originally (this was in 2006) because tests showed that it had better SEO (Search Engine Optimisation) than Google’s own blogging platform. Read the rest of this entry »


In which Da Silva Moore brings out the Anglo-Saxon demotic in me

February 24, 2012

I am not going to try and compete with the Clearwell / Symantec writing team as it comments on developments in the Da Silva Moore v Publicis Groupe case, the first one in which the use of predictive coding, the most exciting eDiscovery technology development of our time (I speak generically here, not of any one product) is debated in front of one of the few judges who understands it and the contribution it can make to cost-effective eDiscovery.

Yesterday brought us Matthew Nelson’s article Judge Peck Issues Order Addressing “Joint Predictive Coding Protocol” in Da Silva Moore eDiscovery case. Phil Favro takes up the baton today with Plaintiffs Object to Predictive Coding Order, Argue Lack of Transparency in the eDiscovery Process. Both articles give clear recitals of the state of play, hyperlinked to appropriate sources, and I have a big enough list of articles to write without treading over the same ground.

I am, anyway, too busy banging my head against the desk after reading the Declaration of the plaintiff’s expert witness in support of their objection.  How have we come to this?  I give no view on the propriety of the Objection or on the content of the Declaration. I am just wondering what it has all got to do with the “just, speedy and inexpensive” requirement of Rule 1 of the Federal Rules of Civil Procedure, with proportionality, with the obligation of cooperation imposed by the rules and expressly required by the judge, and with the evidence on which this case will turn.

Sod all, I’d say.

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Applied Discovery sees an early Valentine from Judge Peck

February 22, 2012

Applied Discovery has a double interest in the Da Silva Moore v Publicis Groupe case which came before Judge Peck just before Valentines Day. As a software provider, it offers technology-assisted review (which it calls “predictive tagging”) powered by Equivio->Relevance as part of its Leverage Suite – the press release from last August is here. Applied Discovery is also one of the best  commentators on eDiscovery practice and the developments which matter to its clients, with weekly updates and good original content.

Both of these interests come together in an article called Did Judge Peck Send Us an Early Valentine? by Applied Discovery’s Ignatius Grande, which picks out points of interest from the published transcript of the Da Silva Moore eDiscovery hearing.  It would be fair to say that many of the essential characteristics of a Valentine’s Card are missing –  the words “Stop whining and stop the sandbagging. This goes for both sides. Get along.”,  whilst definitely about relationships, are not what you would hope to find on the doormat on 14 February.

Ignatius Grande rightly picks out the strands of wider significance: it is important to hear a judge say on the record that technology-assisted review “certainly works better than most of the alternatives, if not all of the alternatives”;  lawyers also need a reminder that the goal is not perfection but making the process “significantly better than the alternative without nearly as much cost”; the emphasis on the human input –  technology assisted review “is only as good as the training that it gets”, and on the obligation to cooperate, are also important. Read the rest of this entry »


Once again, the handsome man comes out badly in a Losey film

February 20, 2012

The good-looking, self-confident male never does well in a Losey film. Don Giovanni is hurled down into Hell as Donna Anna has her revenge. Who can forget the handsome face of William (Michael York) as his girlfriend’s (another Anna as it happens) pointed heel stabs down into his face as she escapes from the smashed car in Accident. James Fox in The Servant, Alan Bates in The Go-Between – no, the men do not come out well in a Losey film, and the better-looking they are, the further they fall.

Sorry? Excuse me a moment. Oh, I see. Wrong Losey. They told me to knock out a few words about how the male character is beaten by the female lead in the latest Losey film, and I naturally assumed that they meant Joseph Losey. That image of the elegant heel in the bloodied face seemed just right. I saw Accident shortly after it came out in 1967 and it sticks in the mind somewhat. If I had stopped to think, I would have realised that it was unlikely that a man born in 1909 was still directing films anyway.

Back to the beginning. The good-looking, self-confident male never does well in a Losey film. From the moment the cameras roll in the the latest Ralph Losey thriller, it is clear that the arrogance of the male character will be defeated by the cool self-asurance of the female lawyer who is pitted against him as they argue about preservation and search efforts. Its title, Animation Showing How Not to Cooperate in an eDiscovery Conference may lack the snappiness of the other Losey’s film names, but you can’t have everything.

The male lawyers’ reiterated line “Take it or leave it” makes the lady (she’s bound to be called Anna as well) angry. She doesn’t settle for trivial revenge like Hell fires or stamping on his face – she is off to the judge.

Full marks to Ralph Losey for his latest animated way of making eDiscovery accessible.

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Huron Legal kicks off LegalTech with the Commonwealth Brunch

January 29, 2012

For several years now, Nigel Murray, MD of Huron Legal in London, has organised what used to be called the British Brunch, now the Commonwealth Brunch. For many of us, it marks the opening of LegalTech.

What marks it out from the many other events taking place here is that it is non-partisan, and attended by a mixture of people from software and services providers, law firms and others for whom a Commonwealth origin, residence or place of business is the qualification for being there. It is also an event at which wives and children are welcome, and my wife Mary Ann and son Charlie came along too.

The photographs below if you the general idea, as well as showing (at least for those who know the people) that there is a strong UK contingent here again.

It feels, perhaps, like the final relaxation before we move forward to the trenches for tomorrow’s three-day battle. The Hilton here on 6th Avenue is quickly filling up with familiar faces. Many thanks, as always, to Nigel Murray and Laura Kelly for organising this much appreciated annual event.

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Welcome to Millnet as a sponsor of the eDisclosure Information Project

January 20, 2012

It is a particular pleasure to welcome London-based eDiscovery / eDisclosure provider Millnet as a sponsor of the eDisclosure Information Project. It is a company with which I have long-standing links and which has turned up in these pages from time to time, most significantly and recently for its involvement in one of the exercises which were the subject of my article Two predictive coding case studies emphasise time and cost savings.

Millnet has been around for more than 16 years. It began as a financial printing company, a business which continues to thrive along with reprographics and digital print. The litigation support function is led by James Moeskops whose past includes a stint dealing with graduate recruitment at one of the Big Four, so it is perhaps not surprising that he has a good eye for identifying the right people to support Millnet’s clients and to grow the business. I wrote recently about Charles Holloway, former litigation partner of whom I said:

Charles is a former litigation partner at a well-known firm of solicitors, and brings much needed legal gravitas (leavened, I should add, with much wit) to a market which risks missing its target through over-emphasis on the alleged magic of technology. The UK eDisclosure industry (and it is no different in the US and elsewhere) very much needs lawyers in it to act as a buffer between those who face the problems caused by technology and those offering the solutions. The Millnet blog, Smart eDiscovery [which Charles writes], is a regular and much-needed part of that translating mechanism.

That legal weight has just been supplemented by the appointment of John Lapraik, formerly a partner at Kennedys with responsibility for eDisclosure issues. John will provide eDisclosure and project management advice to clients as well is responsibility for Millnet’s internal processes. The addition of someone with relevant experience within a law firm is a sound move. Read the rest of this entry »


A further reminder about my Google Plus site

January 18, 2012

I have yet to do the necessary cross-linking between the various places in which I put eDiscovery information. At the moment, it makes more sense to push the stuff out there and worry in due course about making a cohesive whole out of it.

Various things come together here. One is that LegalTech New York starts  on 30 January. Many providers of eDiscovery software and services make announcements before or at LegalTech, and any ambition to capture them all is doomed to failure unless one is content with a copy/paste approach and has nothing else to do.

I am doing two sessions of my own there (one  on information governance with Nuix and a double session on cross-border eDiscovery with Huron Legal).  There is the usual problem of trying to make sure that I meet up with as wide a range of people as possible, in circumstances where pre-booking them all (as they sensibly would like for the  sake of their own diaries) necessarily limits the number of engagements which I can fit into a day and cuts me out of the ad hoc meetings which you get by just being around (you are not “around” if you are shut up in meeting rooms for three days). Read the rest of this entry »


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