The crossover between Triumph Controls and other disclosure developments

Judgment in Triumph Controls UK Ltd & Anor v Primus International Holding Co & Ors [2018] EWHC 176 (TCC) was delivered by Coulson J on 7 February 2018, the same day as the very good session explaining the new disclosure rule of which I wrote here.  There are interesting crossovers between the two developments, links between Triumph Controls and other cases criticising disclosure management, and other factors which make Triumph Controls part of a continuing thread focusing on how disclosure is performed.

The advantage of sitting tight for a bit before writing about judgments is that someone else will leap in and do a summary, saving me the wearisome task of paraphrasing the thing. We have had summary reports from Masood Ahmed (who is on the Rule Committee), from Ed Spencer and Lizzie Hancock at Taylor Wessing and from Pinsent Masons Out-law.com and I do not intend to cover the same ground – the judgment is only 42 short paragraphs long anyway.

What might be more helpful is to pick on some specific points which have implications beyond the bare decision. Continue reading

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Interview: Karyn Harty of McCann FitzGerald on technology, culture and rules in Irish discovery

When I first saw the length of my interview with Karyn Harty of McCann FitzGerald, filmed at Relativity Fest in Chicago, I wondered if I ought to pare it down a little. Having listened to it, I find the whole thing valuable  and have kept it all (it runs for less than 10 minutes).

Karyn Harty was the partner who persuaded the Irish court (and then the Court of Appeal) to permit the use of technology-assisted review in Irish Bank Resolution v Quinn. Since that case, she says, the use of TAR has become more widespread, at least in bigger Irish firms, partly because there is now judicial authority for its use and partly because lawyers and their clients are more familiar with TAR and the value that it can deliver in keeping eDiscovery costs down while complying with the discovery rules. Continue reading

Posted in Analytics, Court Rules, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation, Predictive Coding, Relativity, Technology Assisted Review | Tagged | Leave a comment

Headlining on the subject of disclosure rule reform

An article on the JD Supra site manages somehow to convey the idea that I am positively agitating for eDisclosure rule reform.

The article is headed After panel sponsored by UK ACEDS, Chris Dale calls for rules reform. This exaggerates slightly the enthusiasm conveyed in my full report of the panel session about the proposed changes. Although, as I said in that article, the panel had converted me to the view “that the present piecemeal rules and PDs should be replaced”, I did not intend to cast myself as an agitator for change.

I think a better summary of my position is this – if some thoughtful people have been prepared to do a draft rule, and if the result actually forces judges and lawyers to focus on proportionate disclosure, and if the Rule Committee can spare the time to look at it, then since we are going to have to tackle disclosure sooner or later, it might as well be now.

I am not manning the barricades for or against it, but since it is going to happen anyway, I might as well contribute as positively as possible to the debate.

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Interview: Ian Campbell of iCONECT on the growing need for HR departments to manage data

Ian Campbell, CEO of discovery software company iCONECT, realised long ago that the skills and the technology used for electronic discovery had wider applications. For example, iCONECT now has a strong presence in healthcare data, helping hospitals, medical practices etc to centralise data, perhaps from disparate systems over long periods, into iCONECT’s XERA software. All sorts of reasons justify this, from enhanced business efficiency through to compliance with regulations about the preservation of medical data.

In this interview with me, Ian Campbell talks about another area receiving growing attention within large organisations. This is data held by human resources departments, a major headache for companies with many employees.

iCONECT’s own post about this interview and its context is here. Continue reading

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FTI Consulting: flexibility and documentation are the keys to GDPR readiness

FTI Consulting has been offering information governance services since before the General Data Protection Regulation was a twinkle in the eye of the EU. It was among the first of the major players to draw attention to the fact that both eDiscovery and compliance obligations become easier to manage if you have less data and more understanding of the data which you must keep. In addition, the ability to keep better control of corporate data enables organisations to extract value from the data they have – to make a better business, not just to anticipate and defend against risks.

Sonia Cheng, European Information Governance Leader at FTI Consulting adds a further point in her article Perfect storm: navigating the compliance landscape in 2018. While the chief focus in 2018 is on the GDPR, she says, that is only one of several regulations which affect the collection, storage, processing and sharing of data. Organisations face not just jurisdictional conflicts (where the law of one country conflicts with those of another) but apparent conflicts between obligations in different regulations within a single jurisdiction. One regulation appears to require you to keep data while another imposes restrictions on keeping that same data. Continue reading

Posted in Contract management, Cyber security, Data privacy, Data Protection, Data Security, Defensible deletion, FTI Technology, Information Governance, Information retention | Tagged | Leave a comment

Honouring Judge Peck and Judge Francis as they retire from the bench

On 27 February, Benjamin N Cardozo School of Law is the host for an evening in honour of retired US Magistrate Judge James Francis and about-to-retire US Magistrate Judge Andrew Peck. You will deduce from its title From Da Silva Moore to Microsoft: The Jurisprudence of Judge James Francis IV and Judge Andrew Peck that the focus will be on the opinions delivered by these two judges, and specifically on those related to eDiscovery.

The Cardozo Data Law Initiative is joined by Relativity and ACEDS (the Association of Certified eDiscovery Specialists) in the persons respectively of David Horrigan, Discovery Counsel and Legal Education Director at Relativity, who will moderate the discussion, and Mary Mack, Executive Director at ACEDS, who will introduce the evening. The invitation to the event is here. I would like to be there, but 3,5000 miles of ocean stands in my way. Continue reading

Posted in Cross-border eDiscovery, Data privacy, Data Protection, Discovery, eDiscovery, Predictive Coding, Relativity, Technology Assisted Review | Leave a comment

Interview: Patrick Burke talks about growing corporate awareness of GDPR implications

There is a lot in here – preparations for the GDPR, the growing realisation of the implications of holding the data of other organisations, contractual certifications of GDPR compliance, unwitting indemnification of other parties, WP249 and its assertion that discovery may amount to the “monitoring” of employees, the balancing of one set of obligations against others, and improvements in security in discovery review. 

At Relativity Fest 2016 I asked Patrick Burke, then at Bennett & Samios LLP and now Director, Financial Services Innovation at the New York State Department of Financial Services, about the motivation of organisations who were preparing for the General Data Protection Regulation. What was the most compelling factor which drove them towards compliance?

Most people, at that stage, would have answered “The fear of 4% fines”. Patrick Burke’s answer was “They want to keep doing business”, something I have been quoting ever since. I put the question to him again at Relativity Fest in 2017.

Continue reading

Posted in Data privacy, Data Protection, Data Security, Discovery, eDiscovery, EU, Relativity, Relativity Fest | Tagged | Leave a comment

Epiq launches TMX for collaborative preparation of electronic bundles

The management of electronic documents does not end with the completion of discovery. Between then and trial, documents must be collated and reviewed for the trial itself and for intermediate purposes such as witness statements and, in the US for depositions.

Epiq has launched a hosted SaaS (Software as a Service) platform called TMX. TMX allows documents to be annotated, tagged and hyperlinked to ease the process of case preparation, collaboration and presentation. It builds electronic bundles quickly and easily with concepts which mirror those which lawyers and courts expect such as folder structure, pagination and index generation.

TMX is available immediately in Europe and will shortly be available elsewhere. There is more information about it here.

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Nuix Insider Conference 2018 on 22 March in London

The Nuix Insider Conference 2018 takes place at the Royal Lancaster Hotel in London on 22 March 2018.

As always, the agenda has a set of parallel tracks which between them cover compliance, investigations eDiscovery, cyber threat and the detection of fraudulent behaviour. In parallel with all that are labs covering the latest Nuix technology.

You can register here.

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Posted in Cyber security, Data privacy, Data Protection, Data Security, Digital investigations, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Nuix, Nuix Insider Conference | Leave a comment

Down with the kids as we arrive in New York for Legaltech

Although this post is about our arrival in New York for Legaltech, it is not really about Legaltech. What you hope for after a long flight is a hushed hotel lobby and a friendly receptionist welcoming you to the rooms you booked months ago…..

As we draw up outside our hotel in Manhattan it is evident that something is going on. Crowds of mainly young people line the steps and gather on each side of the lobby, held back only by a single rope. A few relaxed-looking NYPD officers stand around. There are a some large men, nearly as broad as they are tall, wearing those curly earpieces which signify Security. There is a lot of excitement, but it is well-mannered, restrained excitement.

There are four of us – me, my sons Charlie and William, and Charlie’s wife Kat. As we struggle by with our enormous quantities of luggage, I overhear something. “The Grannies”. How sweet, I think, all these kids assembled for their grannies.

“Grammys”, said one of my more switched-on companions. “It’s the Grammys tomorrow”.

The Grammys, I later find, is some kind of award for achievement in the music industry. Some of its contenders are apparently visiting in this hotel and the crowds are there to meet them. Not their grannies. And not us. Continue reading

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Bringing clarity to the implications of the proposed new disclosure rule

I went last week to a panel discussion called Have your say on the proposed disclosure rule changes. It was held under the auspices of the UK Chapter of ACEDS (the Association of Certified eDiscovery Specialists), organised largely by the extremely efficient James MacGregor of Inventus, and hosted by Clyde & Co, with drinks and food sponsored by Inventus.

My starting point, as you may have gathered from an earlier article, was that it seems rather heavy-handed to give us a whole new rule, with all that that entails, when the disclosure working group itself makes clear that many of the existing problems arise because nobody, lawyers and judges alike, is reading and applying the existing rules. Lady Justice Gloster’s time, I reckoned (see my 2018 SCL predictions here) might be better spent visiting delinquent judges with RTFR (“Read the F* Rules”) tattooed on her knuckles.

I earn my living, in part, from talking about rules, and to have the General Data Protection Regulation and a proposed new disclosure rule in one year is not something to complain about. I came away with a modified view of the merits of the proposed new rule, and it is worth setting out in some detail the facts and arguments which persuaded me of its potential value. Continue reading

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Reminders that there are rivals to London’s courts

By “London” in my title, I mean “the courts of England and Wales”. Probably, in fact, I mean “disputes business”. This is not one of those “we’re all doomed” articles, just some pointers to the possibility that other jurisdictions may offer more attractive venues both in terms of procedure and facilities.

One of the motivations behind the new disclosure rule, so we were told this week, was a threat by GC100 companies that they will find alternative ways of resolving their disputes if the courts of England and Wales do not address inefficiencies, particularly inefficiencies of procedure and specifically disclosure, in our courts.

A couple of straws in this wind came my way yesterday. Neither necessarily indicate a flight from London in the short-term, but they do add substance to fears of an erosion of London’s position. Continue reading

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eDisclosure Information Project blog ranked at No 6 of the Top 60 eDiscovery Blogs and Websites

I am surprised, and very pleased, that this blog should have been ranked at number 6 in a list of Top 60 eDiscovery Blogs and Websites for eDiscovery Professionals assembled by Feedspot

Inevitably, the list has a strong US flavour, and it gives me particular satisfaction to rank high in a jurisdiction which is not my own and with a blog which (for reasons to do with its origin) carries the word “eDisclosure” in its title rather than “eDiscovery”. Continue reading

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Hardwicke seminar: eDisclosure – preparing for the new pilot program

Hardwicke is running a series of seminars about electronic disclosure. The next one is on 13 February it is called eDisclosure – preparing for the new pilot program. The speakers are Charles Raffin, co-author of Electronic Disclosure Law and Practice, and Lesley Anderson QC, a member of the disclosure working group.

They will review the proposed changes – not merely the rules but the changes in practice required under the pilot program, the revised menu of disclosure options, the handling of case management conferences, and anticipated changes to the cost budgeting regime. Continue reading

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Interview: Charlie Kaupp of H5 talks about the extensibility of Relativity

One of the attractions of Relativity for its partners and customers is the ability to customise it and to add functionality to meet client needs.

This was the main theme arising from my interview with Charlie Kaupp, Product Manager for H5, at Relativity Fest.

H5’s clients range from those who are expert themselves and know exactly what they what they want through to those who need a lot of hand-holding, education and consultation. Both benefit from the fact that Relativity is an open development platform which allows H5 to access the databases and APIs to develop applications. Continue reading

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Ricoh launches Remlox data collection service with clear appeal to users

“…users can collect request a collection in the morning… and be reviewing their data that same evening, utilising one of Ricoh’s’s several document review tools. There is no technological knowledge required by the end user, nor hardware requirement…”

This description is of Ricoh’s Remlox Cloud service on offer from this week as part of Ricoh’s Digital Forensics Services offering.

I open with this description of what is involved because this simple kind of statement about what actually happens is to be encouraged. Marketing appeal should be to the intended users and, preferably, to those new to the technology on offer – that’s where new customers lie. The more technical stuff is of course important, but it does not grab the attention of the users in quite the same way. Continue reading

Posted in Commonwealth Legal, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Forensic data collections, LegalTech, Ricoh, Ricoh USA | Tagged | Leave a comment

Interview: Kelly Atherton of NightOwl Discovery talks about the increasing use of analytics in eDiscovery

NightOwlKelly Atherton is Senior Analytics and Review Manager at NightOwl Discovery. I have interviewed her before and was glad to have the chance to do so again at Relativity Fest in Chicago.

As subject, as before, was the growing use of analytics in cutting down the time and cost of discovery reviews. In the year since I last interviewed her, Kelly Atherton has seen the development of default workflows at NightOwl for the use of structured analytics tools such as email threading. It is what clients expect for every case.

Increasingly, Kelly Atherton is making use of the conceptual analytics tools which Relativity provides. She refers specifically to clustering as a tool which lawyers can pick up very quickly when removing junk or hunting for key documents. Continue reading

Posted in Analytics, Discovery, eDisclosure, eDiscovery, Electronic disclosure, NightOwl Discovery, Relativity, Technology Assisted Review | Tagged | Leave a comment

The Sedona Conference publishes Data Privacy Primer and BYOD Principles and Guidance

The Sedona Conference remains the most thoughtful of the organisations producing guidance for those involved in electronic discovery in all its forms. Two recent publications are of particular interest, one about privacy and one on BYOD – Bring Your Own Device.

The Sedona Conference Data Privacy Primer produced by Sedona’s Working Group 11 aims to provide a practical framework and guide to basic privacy issues in the US, and to identify key considerations and resources in federal and state law, regulations and guidance. Its final version can be downloaded here.

The Sedona Conference Commentary on BYOD: Principles and Guidance on Developing Policies and Meeting Discovery Obligations is designed to help organisations develop and implement workable BYOD policies and practices, as well as addressing how the creation and storing of an organisation’s information on devices owned by employees affects the organisation’s discovery obligations. It can be downloaded here. Continue reading

Posted in BYOD, Data privacy, Data Protection, Discovery, eDiscovery, Sedona Conference | Leave a comment

Legalweek New York: Corporate Counsel Roundtable 2018

Legaltech 2018, taking place next week in New York, is now part of a wider set of events called Legalweek.

I have for some years taken part in a Corporate Counsel Roundtable organised by William Belt, now at CDS, as co-moderator of the judicial panels which are always part of the programme. The combination of the judges and senior people from the legal departments of major corporations always makes for an interesting session.

Corporate Counsel Roundtable 2018 takes place on Monday 29 January and attendance is limited to corporate eDiscovery professionals, both lawyers and non-lawyers. It includes an eDiscovery case law update, various topics chosen by regular attendees, and a Rules update two years on from the last amendments to the Federal Rules of Civil Procedure.

My own involvement is in the closing panel, a Q&A session with Judges Andrew Peck, Jay Francis and Frank Maas. The moderators are William Belt, Ann McCray of McGuire Woods, and me. Continue reading

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Opentext: Brexit – how do you prepare for the unknown?

The most helpful articles and blog posts by providers and suppliers are those which convey useful information or suggestions without overtly ramming product down your throat. Those who, like OpenText, are confident about their products and their place in the market, are content to leave the subliminal message that they can help while conveying something useful to readers.

Opentext is one of the largest providers of Enterprise Content Management (ECM) tools, and has been adding to its range with the acquisition of Recommind and Guidance Software, giving it a strong position in electronic discovery and the forensic acquisition of data.

The OpenText blog carries an article by Janet de Guzman called Brexit – how do you prepare for the unknown? It focuses on the potential for disruption in a major market, on the potential changes to the regulatory framework which affects companies well beyond the UK and the EU, and on what organisations should be thinking about in circumstances where not all the facts are yet available. Continue reading

Posted in Brexit, Contract management, GDPR, Guidance Software, Information Governance, OpenText, Recommind | Leave a comment

Nuix webinar on 25 January: insider threat lessons from Waymo v Uber

Nuix is presenting a webinar on 25th January with the title Theory to practice: insider threat lessons from Waymo v Uber. Nuix’s description of its webinar begins thus:

Well-placed insiders, comfort media meetings, secret world changing technology, and huge sums of money changing hands – sounds like the latest spy novel, right? But it’s not; this is a true story, where data is the main character in the Waymo v Uber case.

The themes here are the value of data, particularly intellectual property information, the increasing cybersecurity risk that comes with it and, in particular, the risk posed by those inside the organisation.

The webinar is given by Nuix Chief Technology Officer Stephen Stewart and by Keith Lowry of Nuix. There is more information and a link to a registration form here.

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Interview: Nick Robertson of Relativity talks about Relativity Fest London and the Relativity roadmap

We are part-way between Relativity Fest in Chicago last October and the next Relativity Fest London on 1 May. I looked back at the interview I did with Nick Robertson of Relativity after the London version of Relativity Fest in April.

The point to be made here is that, while obviously a US Corporation with a very large US customer base, Relativity has become an international brand, one which manages to appear “local” in any of the jurisdictions in which it operates. That, perhaps, is easiest in the UK where, as Nick Robertson says, Relativity found its some of its earliest customers. Many of its best new ideas, he says, originated in the UK.

This was the fourth year of Relativity Fest in London and, like its big brother in Chicago, it mixed material which is specific to Relativity with legal content applicable to the venue and the audience. The Relativity Fest agenda is packed with both, as well as with the social side of these events for which Relativity is renowned. Continue reading

Posted in Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Relativity, Relativity Fest | Tagged , , | Leave a comment

Lady Justice Gloster to take part in disclosure rule discussion on 7 February

ACEDS, the Association of Certified eDiscovery Specialists, has organised some well-attended evening events since its launch in London last year.

The next one, on 7 February, may be the most interesting yet. It is about the proposed disclosure rule changes, and the panel includes Lady Justice Gloster who chaired the working group which drafted the proposed new rule.

The most straightforward and factual article about the proposals is on Simmons & Simmons’ Elexica site. It summarises the proposals and the main reasons for the changes, and has links to the draft rule.

Vince Neicho, now VP eDiscovery at Integreon, will be the moderator of the panel, drawing on his many years of responsibility for disclosure at Allen & Overy as well as his more recent involvement at Integreon. The other panel members are Ed Crosse, of Simmons & Simmons, Tim Brown of RPC and Caroline Field of Fox & Partners. Continue reading

Posted in Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Integreon, Inventus | Tagged , | Leave a comment

AccessData: a webinar, a conference, ACEDS affiliation and more

I generally stick to single subjects in these blog posts, but AccessData has been busy announcing things and it is convenient to combine them in a single post.

Webinar on 17 January

I have written before about the current series of webinars which AccessData is running, mainly about forensic matters (I make that distinction because AccessData’s products and services cover a very wide range of subjects).

There is a list of the webinars in their Coffee Break Webinar Series – 2018 here. The next one, on 17 January (that is, tomorrow) is called How to examine mobile evidence in FTK. It is about the use of AccessData’s MPE+ and nField products to collect and analyse mobile devices properly and quickly. You can register from the webinar schedule mentioned above.

AD User Summit 19-22 June

I was a moderator and speaker on several panels at last year’s AD User Summit in San Diego, and I wrote about it here. It was as enjoyable as it was useful. Continue reading

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Nuix webinar on 17 January: augmenting human intelligence

Terminology matters when trying to interest people in new products or developments. The expression “artificial intelligence” has the potential to put people off, not least the lawyers, who pride themselves on their own application of intelligence to business problems.

The reality is that a few computer applications, particularly in business and legal business, are capable of performing the whole function expected of lawyers. It is better, perhaps, to think in terms of AI as meaning “augmenting intelligence”.

The human element remains important – I moderated a whole panel at Technology in Practice in Toronto on the subject of the continuing and important role of humans both as  clients and as the doers of work. Continue reading

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Away for a few days before 2018 gets going

It may seem rather odd to go away for a week at the beginning of January. The British, after all, take their Christmas and New Year break rather more seriously than they do in the US, and you might think we have had enough rest.

That is not unfair, but this is the last week of relative peace for a while. My first event is next week. Then it is time to prepare for Legaltech in New York – I am doing two panels there, fitting in as many video interviews as possible, having as few formal meetings as I can get away with, and doing lots of bumping into people in corridors, which is what I really go there for.

We used to come down here to the North Cornwall coast in the autumn, when schools have gone back, the roads are clear of Chelsea Tractors and prices are sensible. That was great, but it increasingly conflicted with the conference season and having to flog to Heathrow for yet another long-haul flight. Two of our boys work on the technical side of entertainment, and January is quiet for them; all three are here for part of this week. Continue reading

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Commonwealth Brunch on the Sunday before Legaltech New York

Many years ago, Nigel Murray began a tradition of organising a Commonwealth Brunch on the Sunday before Legaltech (now part of Legalweek) in New York. The Commonwealth “qualification” effectively brings in anyone except those from the US (and they are welcome too if they work outside the US).

Nigel Murray cannot be with us this year, and James MacGregor of Inventus in London has has kindly offered to organise this year’s Brunch.

The venue, as so often in the past, is the Tavern on the Green, a short walk from the 6th Avenue Hilton. The time is 12.00pm on Sunday 28 January and the cost per head is $80. Continue reading

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Challenges and opportunities for FTI’s new Managing Director for Asia

FTI Technology has appointed Sandeep Jadav as its new managing director for Asia. He will be based in Hong Kong with responsibility for FTI teams in Shanghai, Tokyo, Singapore, and elsewhere in the Asia-Pacific region.

Any thought that I might interview him before he goes has been anticipated by Kate Holmes, Managing Director of FTI Consulting in its marketing department, who has already done a comprehensive Q&A with Sandeep Jadav. You will find it here, and all I need to do is point to the key points arising from it.

Asia is particularly complex region

It is idly convenient to bundle the whole of the Asia-Pacific region together as if it were one place. It is, of course, a large number of economically-important countries with a range of languages, laws, data protection regulations and, not least, cultural differences between themselves and distinct from those obtaining in the US and Europe. China’s data protection rules, comprehending state secrets as well as commercial and legal issues, tend to dominate discussion, but each part of the region brings its own laws, problems and customs. Continue reading

Posted in China, Cross-border eDiscovery, Cyber security, Data privacy, Data Protection, Data Security, Discovery, eDiscovery, FTI Technology, Hong Kong, Singapore | Tagged | Leave a comment

Interview: Ben Rusch of Consilio on the practical problems of collecting data in the EU

ConsilioBen Rusch is a solicitor and Vice President of Document Review Services at Consilio in London. He took part in a panel discussion on privacy, data protection and cross-border discovery which I moderated at ILTA 2017 in Las Vegas, where his subject was the practical problems of collecting data in the EU. This aspect gets relatively little coverage compared with discussion about the legal difficulties, and I wanted to hear more from him as someone who deals with these issues daily.

Two issues come up in this interview. One is to do with practical things like getting hold of equipment and premises. The other is about the added implications which EU privacy and data protection rules and expectations put in the way of those who are used to how things work in the US.

Continue reading

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My 2018 predictions as published by Computers & Law – a “warped crystal ball”

Each December, Computers & Law editor Laurence Eastham asks for predictions for the year ahead. I used to be very serious about this, straining to think about how eDiscovery / eDisclosure law, technology and practice would develop in the next twelve months. Others would be doing the same, and we all came up with more or less the same predictions. I think it was the Mitchell case, and the absurd consequences as judges tried to implement its stupidity, which tipped me towards a less serious approach.

Laurence Eastham has kindly permitted me to republish my 2018 predictions, originally published here on the Computers & Law site with the heading Chris Dale has made a habit of sending SCL a great set of somewhat acerbic predictions. Here is another glorious product of his warped crystal ball.

__________

We are urged this year to think back to our predictions for earlier years and to see how they fared. Most of mine fall under two main headings: one was that judges would become militant enforcers of the rules of civil procedure as they relate to disclosure; the second was that the Ministry of Justice will foul something up or close something down, generally undermining the purpose inherent in its name. Other themes include the growing importance of the data we create with our smart devices, often without knowing it, and how that can come back to bite us. Continue reading

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Interview: Eric Mandel of Ricoh talks about the services Ricoh brings to law firms and other businesses

I took the opportunity at ILTA 2017 to talk to people who are influencers or commentators on eDiscovery, or who get their hands dirty actually delivering eDiscovery services. Eric Mandel, an expert in information governance and risk compliance at Ricoh, fits into all three categories, and it was good to have the opportunity to talk to him.

 

I started by asking him what drew him to Ricoh. Ricoh, he said, is well used to managing data on the product side, and has been extending that skill and experience to the complex issues related to eDiscovery. As the demands of litigation and regulatory investigations have increased, clients found that they were spending too much money responding to these demands. They increasingly need to know where their data lives and what information they have in order to respond efficiently to these external demands. Many of them are increasingly keen to manage at least part of that process themselves, hesitating to hand over large volumes of data to lawyers for security reasons as well as for cost reasons – law firms are now the target of bad actors of various kinds and, while many of them are secure, many are not.

At the same time, many law firms are realising that offering eDiscovery as a service has brought them cost and liability, which is not necessarily matched by the profit from providing it, particularly as many clients are unwilling to pay their lawyers for these services.

Some law firms have invested in technology, and in people who understand technology and the processes surrounding it. Some larger firms are effectively running large captive vendors and doing it well. Many mid-size firms, however, have struggled with this and want to shift the work out, setting up one or more relationships with outside providers. That is the space which Ricoh wanted to fill for both clients and law firms and that is why they recruited Eric Mandel.

In establishing these services, Ricoh developed RICOH eDiscovery On Demand, a SaaS environment originally developed as a small case tool. Clients upload their own data into the system and can just get on with the task of reviewing their data and, perhaps, even coding it. Ricoh found their clients started asking for Ricoh On Demand for larger matters where they take responsibility for project management, and Ricoh manages the storage, the updates and the infrastructure.

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AccessData webinar on 19 December: how to identify, assess and eliminate risk with AD RTK

AccessDataAccessData has for many years been a leader in the field of forensic software, designed to identify and retrieve information from all kinds of digital devices and resources. Its range of software for these purposes is called FTK.

Originally developed for criminal investigations, software like RTK has found new uses in a corporate environment. This is not just because volumes have increased; the range of risks faced by large organisations becomes wider, and develops more serious implications, every year. This is partly because of external threats; it is also because of the risk of insiders behaving badly in some way – either wrongfully removing information or using it (perhaps in ignorance and innocence, but perhaps not) in a way which is inconsistent with the law or with regulatory obligations. Continue reading

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Vince Neicho of Integreon on the proposed new disclosure rule. Let’s practice by enforcing the existing rules

Vince Neicho and I served together on Senior Master Whitaker’s working party which produced Practice Direction 31B and the Electronic Documents Questionnaire. Vince was then the long-serving Litigation Support Manager at Allen & Overy and is now Vice President, Legal Services at Integreon. No-one brings more experience and understanding to the importance of the rules in managing disclosure than Vince does.

Last week I gave my first talk on the proposed new disclosure rule produced by a working party led by Lady Justice Gloster. Vince Neicho is ahead of me with a considered article about the proposals which you will find here on Legal IT Insider.

Vince’s article is headed Proposed disclosure change: much ado about something? It is perhaps not surprising after our many years of working together on the subject that our opinions are broadly the same. That question mark at the end of his title neatly encapsulates my own view. Much ado about…what, exactly? Continue reading

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Evidence on smartphones, in photographs and on social media

Today brings us news of a criminal prosecution, for rape, which was withdrawn at trial when a newly-instructed prosecuting barrister first uncovered data on a phone which destroyed the prosecution case. The police knew of the information, indeed had it in their possession, but decided against producing it, allegedly on the ground that they had been told to minimise the expense of disclosure.

You get the story from the Times article here (£).

It seems a good opportunity to go briefly over some of the civil cases in which evidence from smartphones, in photographs, or on social media has been relevant. These are a few of the ones I have written about.

First, a picture of the information stored by default with an iPhone picture:

 

Metadata / EXIF data in photographs

Let’s start with a shipping case to show that evidence of this kind can be extremely important in commercial matters and not just in smaller cases. The case is Kairos Shipping Ltd & Anor v Enka & Co LLC & Ors [2016] EWHC 2412  and my article is headed Photographs and their metadata help scuttle a shipping insurance claim. The evidence included photographs taken of a ship as it sank. The metadata / EXIF (Exchangeable Image File) data of the photographs was not produced until the eighth day of trial. On seeing it, the naval architects significantly changed their view of the evidence. The judge said that the evidence was relevant to all of the main issues to be decided. He concluded that the ship had been scuttled.

In addition, the unsatisfactory evidence about the disclosure of the photographic metadata led the judge to conclude that he must treat all of the captain’s evidence with caution. In other words, the fact that the evidence had to be dragged out of the witness was as important as the content of the evidence itself.

Illness claim disproved by Youtube videos

It is important for lawyers to know if there is material lurking somewhere which contradicts evidence given by their own clients as well as by witnesses for the opponents.

In Cirencester Friendly Society Ltd v Parkin [2015] EWHC 1750 (QB) (I wrote about it here), Parkin’s claim that he was disabled was undermined by Youtube evidence of him leading an active life – it was not so much “lurking” as publicly available in clear sight.

The judge said: “Nemesis overtook Mr Parkin most dramatically because, like so many people nowadays, in particular those who seem minded to seek to perpetrate frauds, he seemed incapable of keeping off the Internet and sharing the true nature of his activities through social media”.

A nemesis of a different kind would await a lawyer (on either side) who neglected to establish that such evidence existed.

LinkedIn evidence points to shadow directorship

This evidence on social media doesn’t have to be conclusive to be significant. It may, when added to other factors, point in one direction or another.

In Green v Marston & Anor [2016] EWHC B11 (Ch), a company in liquidation had made payments which were considered improper – my article is headed LinkedIn entry as evidence of shadow director status. The point at issue was whether a Mr Lochner ought to be liable for those payments. His LinkedIn profile, as well as his business card, described him as Corporate Finance Director, and he was held to be a shadow or de facto director liable to the liquidator for the payments.

At least check the photograph’s date

You don’t necessarily need anything very sophisticated to undermine the evidence of a photograph. My article The claimant who relied on photographs taken before the accident is about a claim against a local authority by someone who said he had been injured because of the state of the pavement. His photograph purporting to show the place where he had fallen was in fact taken nine days before the date of the alleged fall.

__________

This is enough, I think, to show the importance for lawyers of asking about the existence of data, whether publicly available or on social media, which may prove or undermine claims made by or against their clients. As I write, lawyers on Twitter are debating whether the Crown Prosecution Service should take or share the blame for the failure to produce the evidence in the rape case. A lawyer in a civil case might be excused if his client or witnesses deliberately lie or conceal disclosable information when asked for it. A failure even to ask about possible sources of information, whether supportive of or adverse to a claim, must clearly be a breach of professional obligations.

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iCONECT webinar on 15 December: five things we learned hosting the JFK documents

One of the more interesting trends in the last couple of years has been the realisation that eDiscovery tools and skills have application beyond the obligations to disclose documents in disputes. The analysis of the Panama Papers and Paradise Papers provides one such example; another comes from the increasing use of eDiscovery tools in document-heavy legal work beyond disputes, such as M&A and other areas where substantial due diligence is required.

iCONECT gave us a very good example of this recently when they put the newly released Kennedy assassination documents into its XERA discovery platform and made them available to anyone who cared to login. I wrote about that here. Continue reading

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Relativity webinar on 14 December: celebrity lessons on litigation, legal ethics, and eDiscovery

Relativity is presenting a webinar today, 14 December, called 2017 data discovery: celebrity lessons on litigation, legal ethics, and eDiscovery.

2017 has brought us some eDiscovery cases which have made the news as much for the involvement of some celebrity as for the eDiscovery content. Cases involving the likes of Taylor Swift and Lynyrd Skynyrd draw attention to principles which might otherwise go unnoticed.

David Horrigan of Relativity is moderating a webinar today, 14 December, which considers these and other case law developments in 2017. The objectives of the webinar include: Continue reading

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FTI webinar today: 5 steps to prepare for the GDPR and the rights of data subjects

FTI Technology is running a webinar today, 12 December at 2pm Eastern, about the GDPR and specifically the rights of data subjects in relation to information held about them

The GDPR brings many challenges for organisations. High among them, though perhaps overlooked by many, is the right of a data subject to know what personal data is kept about them and to have it deleted if it is inaccurate, inadequate, irrelevant or excessive for the purposes for which it was collected and kept. Continue reading

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OpenText article on challenges to TAR process in SDNY

Adam Kuhn of OpenText reports in an article headed SDNY Rejects Challenges to TAR Process Despite Missteps, Upholds Reasonableness Standard on a case in the Southern District of New York whose focus is on the transparency required from a party using technology-assisted review.

The receiving party identified some apparent errors in the production (later described as de minimis) and asked the court to order that more information be provided about how the exercise was conducted. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, OpenText, Predictive Coding, Recommind, Technology Assisted Review | Tagged | Leave a comment

Epiq opens document review services centre in India

Epiq has opened a new document review services centre in Hyderabad, India. When added to Epiq / DTI’s existing review centres around the world, this provides global clients with continuous access to Epiq’s document review services.

There is a press release about the new centre here.

Increasingly, in most common law jurisdictions, parties are required to show their clients, their opponents and the court that they are using the most efficient and proportionate method to give discovery of ever-increasing volumes of documents. This must inevitably include both a comparison of different technology solutions and of different process approaches including outsourcing at home or abroad. Continue reading

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Integreon acquires Allegory to extend its litigation management services

When Alma Asay was a lawyer at Gibson Dunn, she developed spreadsheets to enable the firm to manage complex cases. She founded Allegory in 2012 to develop a much more sophisticated way of handling all the information acquired or developed during major cases and to make that available to users. Integreon has now acquired Allegory.

Already globally entrenched as a provider of eDiscovery and related services to legal departments and law firms, Integreon has been steadily moving towards the wider goal of supporting lawyers across the whole life of a case, bringing advanced technology and the industry expertise to enhance the efficiency and profitability of its clients. Continue reading

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Interview: Martin Bonney of Epiq on corporate readiness for the GDPR

Martin Bonney, International Consulting Director at Epiq in London, has long been advising organisations on the need to identify and manage their data, and on all the subjects loosely grouped under the heading “information governance”.

The General Data Protection Regulation, coming into force in May 2018, ought to provide an incentive for organisations to take this advice, and I asked Martin Bonney if he had seen signs of corporate readiness for the GDPR.

Continue reading

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Nuix webinar today: intelligence, collaboration and analytics for digital investigations

Investigations rarely involve simple analysis of a single data source. The key facts are usually spread across multiple sources and connected to multiple people, organisations and countries.

Nuix specialises in this, which is why its software was used as part of the Panama Papers and Paradise Papers investigations – see my recent article here about the latter.

Nuix is presenting a webinar today, 5 December 2017, at 3:00pm GMT, which aims to explain how investigators can share intelligence, collaborate across geographic and jurisdictional boundaries, and find connections across multiple evidence sources.

The webinar is given by Paul Slater and Mark McCluskie of Nuix. There is more information and and a link to the registration form here.

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Not all GDPR advice is helpful

I have an article in draft about some of the marketing surrounding the GDPR, with a focus on the “4%-ers” – those who seek to imply that the slightest defect in policy or practice will automatically lead to a fine of 4% of global turnover.

You might like to look at the website of the UK information Commissioner’s Office for a more reasoned approach, in a series of blog posts about GDPR myths.

You might also care to do a word search of the GDPR itself and read the passages with the  words “citizen” or “resident” in them. As a general rule of thumb, your marketing should refer to “citizens” as often as the GDPR does. And no more.

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Hardwicke hosts launch of eDisclosure Law and Practice

OUP has published Electronic Disclosure Law and Practice by Michael Wheater and Charles Raffin of Hardwicke.

Although I suggested (in my article here) that the authors might be “miffed” by the coincidence that the book should reach the shelves at the same time as new rules were announced, I went on to observe that there is much else in the book which will survive the replacement of one set of rules with another.

At the launch party, the authors were at pains to point out two things – firstly that there is a long way to go before the any new rule takes effect, and secondly that the bulk of the book is about the practice of managing disclosure, well beyond the the rules of litigation. Continue reading

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SCL seeking technology and law predictions for 2018

Computers & Law is seeking your predictions for 2018, as it does every year about this time. The twist this year is a request for regular contributors to look back at previous predictions (2008 is suggested as a benchmark year) and see how your predictions fared.

Many of mine have been about judges enforcing the disclosure rules and have been undermined by their conspicuous failure to do just that – see the end of my article about the pending new rule for my view on this failure.

It would be fair to say also that my many predictions about the destructive incompetence of the Ministry of Justice have not quite been fulfilled, but I did set a pretty high bar for that. Last year, for example, I predicted this: Continue reading

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New disclosure rules – links and commentary from Gordon Exall

Barrister Gordon Exall, the author of the invaluable Civil Litigation Brief, has now put more than 2,000 posts on the blog.

He has done more than provide an essential service for all those who grapple with civil procedure. He has also shown that there is an important place for blogs and tweets by serious lawyers, filling a gap which no amount of heavyweight books or attendance at seminars could give.

One of his recent posts is called Proposed new rules for disclosure: links and commentary, and includes helpful pointers towards others (including me) who have made observations on the draft practice direction which is now heading for consultation before its eventual emergence as a replacement discovery rule.

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The Paradise Papers, Nuix and the repurposing of discovery tools and skills

One of my best moments of last year was interviewing Gerard Ryle of the International Consortium of Investigative Journalists about the Panama Papers. Nuix was one of the software tools used to analyse that data and it was easy to see that the whole investigative endeavour was like a very large eDiscovery project.

Now we have the Paradise Papers, acquired by a similar route and processed in much the same way. Here is a link to the Süddeutsche Zeitung Q&A (in German).

One paragraph is headed How were the Paradise Papers evaluated, which translates as follows: Continue reading

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Epiq to host GDPR Roundtables at Managing Risk and Litigation Conference

The General Data Protection Regulation will take effect in just under six months. Martin Bonney and Deborah Blaxell of Epiq will be leading a roundtable called GDPR applies in the next six months: it’s time to benchmark your progress towards compliance at The Lawyer Managing Risk and Litigation event in London on 5 December.

There is a web page about that here, including a link for registration at the event.

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An eDiscovery / eDisclosure roundup to clear the ToDo list

Every so often, the rate at which things happen outstrips my ability to keep up with writing about it. At such times I can either leave the to-do list stretching off into the far distance or, as I am about to do, knock out a series of short posts wiping the slate more or less clean, leaving me free to do the longer and more analytical posts which I like doing instead of scrabbling to keep up.

The killers, in time terms at least, are the conferences. I love doing them, and can think of few which I haven’t enjoyed in the last decade: I enjoy the performance element; I get to talk to people who inform my own understanding of the eDiscovery / eDisclosure world; as a bonus I meet a lot of very agreeable people – one of the distinguishing features of this market. The events are also an opportunity to film the videos which now constitute a large part of my output, and that in turn gives me the excuse to travel with one of my sons, William or Charlie, who deal with the technical side of video production. This is all good. Continue reading

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Law, technology and the human element at Technology in Practice in Toronto

Technology in Practice is run in Toronto by Commonwealth Legal and Ricoh. This was its 10th year and I was very pleased to be asked to take part.

The agenda was assembled by Jennifer Johnson and had a thematic consistency across its two days which one rarely finds at these events. The highlights, my own panels apart, were the keynotes – itself something of a first for me since I rarely find keynote speeches as valuable as the subject-specific sessions which follow them.

To open, we had Karyn Harty of McCann Fitzgerald via a live link, represented by Tom Connor, also of McCann Fitzgerald, on the podium. The story was of the transition from a “fountain-pen firm” to one which uses technology, and the right people, to advance in all areas of practice, keeping costs down for the client while keeping the firm ahead of its rivals (and, indeed, ahead of many larger firms in bigger cities). Continue reading

Posted in Commonwealth Legal, Discovery, eDiscovery, FTI Technology, iCONECT, Relativity, Ricoh, Ricoh USA | Tagged , , , | Leave a comment

Technology, learning and fun at Relativity Fest 2017 in Chicago

Relativity Fest again managed to retain the sense of being a family affair while actually being one of the largest eDiscovery events in the calendar. When the “family” for a CEO keynote is 1,560 users, partners and others, it is quite an art to retain the sense of shared endeavour and ambitions. Relativity CEO Andrew Sieja manages this very well, hiding meticulous preparation and practice behind an almost conversational manner. We got the stats indicating growth, a quick demo or two, eloquent representatives of partners who step on stage, do their bit and go, and a roadmap for future development.

The new partnership between Relativity and FTI was among those celebrated during he keynote:

There is a summary by Shawn Gaines of the announcements made during the keynote here. Continue reading

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Interview: Doug Ventola of Consilio on law firm diversity and other criteria which matter to clients

Consilio

I recently moderated a panel in Toronto whose theme was the continuing importance of the human element in the provision of legal services. One of the examples I drew on was the fact that, for all their focus on cost and efficiency, clients still ascribe value to personal and human values. This extends to valuing a law firm’s commitment to things like diversity. What made me think of this in that context was an interview which I did at ILTA in Las Vegas with Doug Ventola of Consilio at which he told me of the demand for Consilio’s work in measuring the diversity of its workforce.

Sky Analytics is an analytics and benchmarking tool designed to help corporate legal departments understand and maximise the value of the legal services which they buy. Doug Ventola is the managing director at Consilio responsible for Sky Analytics.

Our interview subjects ranged from measuring diversity to drafting RFPs and to wider benchmarking tools enabling corporate legal departments to make informed choices about where they place their work. Continue reading

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ILTA Insight in London on 16 November

ILTA is the International Legal Technology Association and, although US led, has a strong commitment to the word “International” in its name. ILTA Insight is a one day conference which brings to London the spirit and ideas of ILTA’s main annual event, ILTACON 2017, held this year in Las Vegas.

The agenda covers a wide range of legal technology subjects. I am taking part in one of them called Managing data across the firm. The panel members are Vince Neicho of Integreon, Andrew Haslam of the London office of Squire Patton Boggs, and Emily Wyllie-Ballard of RPC. Our theme, as you may deduce from the title, is broader than electronic discovery in the context of disputes. Subjects include: Continue reading

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On my way to Technology in Practice in Canada

I don’t need to promote Technology in Practice 2017, due to start on Thursday in Toronto, because it has already sold out. I am moderating three panels at it, and preparation for them has taken a good chunk of the time since I last got back from North America, less than a fortnight ago. This is my last trip of the year and, much as I enjoy them, I will be glad to getting back to writing the articles and editing the videos which have not had much of a look in recently.

My three panels represent different areas of my interests. My first is called A judge’s perspective on critical eDiscovery issues in which Justice Fred Myers of the Ontario Superior Court of Justice, US Magistrate Judge Andrew Peck of Southern District of New York, and I, will talk about eDiscovery rules and practice, principally in Canada and the US, but also around the rest of the world. One of my recurring themes is the extent to which jurisdictions are increasingly borrowing ideas from each other or, at least, arriving at similar conclusions about the way forward. A panel like this is a good way of disseminating ideas. Continue reading

Posted in Commonwealth Legal, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Relativity, Ricoh | Tagged , | Leave a comment

A proposed new disclosure rule for England and Wales

I recently spent several days rewriting my slides on eDisclosure in England and Wales, covering the rules, practice directions and the cases. The timing was occasioned by a request to give a three hour talk on the subject, and the intention was to use them as the basis for a set of video presentations on the whole thing. The website for that is largely drafted and it needs only some updating and the recording of me talking about it to go live.

Or so I thought until yesterday when the Courts and Tribunal’s Judiciary website published what they call Proposals for a new disclosure regime for the Business and Property Courts with a comprehensive set of drafts designed to update the whole rules regime affecting disclosure. Continue reading

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Interview: Matthew Geaghan of Nuix on collecting data from mobile devices

One of the main enhancements to Nuix 7.4 is improved ability to collect data from mobile devices, including call histories, email, messaging and communication patterns across multiple sources. At ILTA in Las Vegas I spoke to Matthew Geaghan of Nuix about the rise of mobile data and the increasing need to capture it.

Most of us create, capture and store mobile data all day, thanks to the ever more sophisticated hardware which we still call “phones” although relatively little of their use involves talking to people. As Matthew Geaghan points out in this interview, it is increasingly difficult to catch people’s eyes as you walk around because they are all staring at their little devices. Continue reading

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iCONECT puts JFK assassination records online

Applause for eDiscovery software company iCONECT which has put the JFK Assassination Records online in a form which allows them to be searched and read. There is a page about this here with a request form for linking to the resource.

Alongside my interest in discovery tools and processes, I keep up with academic / history archivists because the same issues occur in both disciplines, from identification and collection through to indexing and to making records searchable and accessible.

The results of journalistic investigation can be processed and made available using the same tools, as the story of the Panama Papers shows. Continue reading

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Eversheds Sutherland sees revenues increase from its investment in litigation technology

An article in LegalWeek tells of the tangible benefits which Eversheds Sutherland is deriving from its investment in OpenText eDiscovery software, in skilled people and in training.

I published an article in August called Thinking through the management of eDisclosure services – Eversheds Sutherland and OpenText. It described the process, initiated at a very senior level within the firm, to think through how it handled its eDiscovery obligations to arrive at a conclusion which was good for the clients, good for the lawyers actually doing the work, and good for the revenue line.

I said this:

It is surprisingly rare for law firms to promote their use of technology in support of their eDisclosure / eDiscovery services. The main reason why law firms make an investment in technology and in the training which goes with it is to offer a better service to the clients at a lower cost, whilst ensuring that they make a profit at the same time. These are worthy ambitions, signs that the firm is bringing the same commercial nous to its own business as its clients expect for theirs. The handling of documents and data is one of the most expensive components of disputes and investigations. Why, then, are law firms traditionally shy in talking about it?

The conclusion of the exercise was that Eversheds Sutherland took OpenText as its eDiscovery platform on a basis which left the management of infrastructure, software and disk space with OpenText while keeping the disclosure management in house. The firm recruited a Head of Litigation Technology, Enzo Lisciotto, and a team of analysts and others to bring expert support within its own walls. Continue reading

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Investigative journalism as an eDiscovery exercise

An excellent article by Greg Bufithis called the Panama Papers, eDiscovery… and a murder in the afternoon sun is primarily about the murder of Daphne Caruana Galizia in Malta.

She led the Panama Papers investigation into corruption in Malta, and the article is about that and about what Greg calls “data journalism”. He refers to the role played by Nuix in providing the processing and investigation software which enabled the International Consortium of Investigative Journalists to conduct what was effectively a multi-jurisdictional, multilingual eDiscovery investigation relying on the work of journalists and others around the world.

At the 2016 Nuix User Exchange I had the pleasure of moderating a keynote discussion with Gerard Ryle, Director of the ICIJ, who told the story of the investigation and the role of Nuix and other investigative and analytical software in analysing the 11.5 million documents in 2.6 terabytes of data sent anonymously to Süddeutsche Zeitung. Continue reading

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Exploring computer forensics and employment law – FTI in London on 16 November

A number of those who follow me on Twitter are employment lawyers and they are often the ones who react when I post or tweet something about data arising from forensic investigations. There are others (or perhaps the same people) who seem to have an interest in gin. I have an event recommendation for both the interest groups.

FTI Consulting is giving a talk in London on 16 November called Exploring computer forensics and employment law. Its starting point is a survey result whose key conclusion was that 69% of respondents see the greatest threat of data theft coming from within their own organisation. Continue reading

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iCONECT webinar on multimedia discovery is now online

A few weeks ago, I moderated a webinar presented jointly by iCONECT and ACEDS called Did you see that?… how video / audio are changing the way we win cases.

The presenters were Ian Campbell, CEO of iCONECT, and Rob DeBord, Director of Hosting Solutions at New Jersey Legal. Mary Mack of ACEDS did the the introductions.

Our theme was that vast amounts of multimedia, non-text data is created every day by governments, law enforcement, businesses and medical organisations. Individuals like you and me also create our own pictures and videos on phones and tablets. All of this is potentially discoverable, and the purpose of the webinar was to share some ideas on how to identify, capture, review and produce it. Continue reading

Posted in ACEDS, Discovery, eDisclosure, eDiscovery, Electronic disclosure, iCONECT, iCONECT-XERA, Multi-media discovery | Tagged , , | Leave a comment

Twitter Takeover on 18 October for Technology in Practice in Toronto

Technology in Practice is a large event dedicated to eDiscovery and related topics. It is run by Ricoh and by Commonwealth Legal, and takes place in Toronto between 8 and 10 November.

Tomorrow, 18 October, I will be taking over the Twitter accounts of @RicohLegal and CL_Legal in order to promote this event. Its agenda is here and the aim of the Twitter Takeover is to encourage people to ask questions about it.

I am enthusiastic about Technology in Practice not least because I have two interesting panels to moderate, one on technology-assisted review with Judge Peck and Maura Grossman, and one on changes in rules relating to discovery in the company of Judge Peck and Justice Myers of the Ontario Superior Court of Justice. I have written about these panels here. Continue reading

Posted in Canadian Courts, Commonwealth Legal, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Ricoh, Ricoh USA, Technology in Practice | Tagged , , , | Leave a comment

Putting the spotlight back on disclosure in England and Wales

A couple of articles, both published today, deserve attention from those interested in disclosure in England and Wales and, specifically, in the courts’ approach to it.

One, by Kerry Underwood, is headed Disclosure cut by 90% by Commercial Court. The headline puts us on notice of some fierce court control. The other, called Electric Reams, is by Rachel Rothwell in the Law Gazette. It is a wide-ranging survey of disclosure, based on interviews with a number of people, including me. I will come back to both articles below.

After the excitement (a relative term, I appreciate) of last year’s judgments in Pyrrho and in BCA Trading, the law reports have not troubled us much in recent months. ICI v Merit Merrill (I wrote about that with the title What will your disclosure conduct look like under the judicial spotlight?) gave us another example of the court generally dissatisfied with a party’s conduct of disclosure. Tchenguiz v Grant Thornton (I wrote about that with the title Tchenguiz v Grant Thornton – proper use of the “menu” and the overriding objective) gave us a judge lamenting that no one was taking much notice of the opportunities offered by Lord Justice Jackson’s 2013 reforms, specifically in relation to the Menu Option. I will not stop now to list the narrower and more specific cases (I have an article coming up with a survey of these). We have not seen much about big issues of principle. Continue reading

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Interview: Judge Peck on the sharing of ideas and practice between jurisdictions

I recently interviewed US Magistrate Judge Andrew Peck, one of a series of interviews at ILTA in Las Vegas. We covered two subjects, one of which is an example of the other. The narrower topic was the international spread of the acceptance of technology-assisted review in litigation; the wider subject is the increasing willingness of jurisdictions to watch what happens elsewhere and to consider adopting at least some of the ideas which seem to work.

The context was provided by two forthcoming events in which Judge Peck and I are to be involved. The first is Relativity Fest, taking place in Chicago from 22-25 October, when I will be the moderator of a panel called the United Nations of TAR. The panel members are Judge Peck himself, Justice Peter Vickery of Victoria in Australia, and Karyn Harty of McCann FitzGerald in Dublin. If the rest of the world has been unwilling to adopt the general US approach to litigation and to discovery, it has certainly looked to the US, and to Judge Peck’s opinions in particular, for encouragement to bless the use of technology-assisted review. Continue reading

Posted in Commonwealth Legal, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Relativity, Ricoh | Tagged , | Leave a comment

Fighting the good fight at the Nuix User Exchange 2017

You take your optimism where you can find it these days. Few of us can feel very cheery about the political or economic future on either side of the Atlantic. At times like this, optimism lies in hoping that your own corner of the world is making some headway or, at least, holding the line. Churchill’s speech after Alamein comes to mind:

Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.

The war, in this context, is that fought against cyber criminals and against those who would infringe our privacy. We are not yet winning the war nor, perhaps, even holding the line, but there is at least a sense that we are fighting back and may be at the end of the first phase of the battle. The tone at the Nuix User Exchange at Huntington Beach in California was one of cautious optimism, both as to that wider war and as to the future of Nuix’s market. The two go together. Continue reading

Posted in Cyber security, Data privacy, Data Security, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Information Governance, Nuix | Leave a comment

Nuix webinar on 4 October: Left and Right Breach

Nuix is presenting a webinar on 4 October with the title Left and Right Breach. Right of breach is the detection of activity after it has happened; left of breach involves getting ahead of the breach and pre-empting and preventing it.

The key takeaways from the webinar are:

  • Understanding the impact of being right of breach
  • Exploring how endpoint technology and behavioural analysis can move us towards being left of breach
  • Learning how being left of breach can enable better visibility more effective use of intelligence

The speakers are Nick Pollard, Security Intelligence and Analytics Director at Nuix, and Stuart Clarke, Head of Security and Intelligence Solutions at Nuix. There is more information and a registration form here.

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Interview: David Horrigan of Relativity talks about Relativity Fest and RelativityOne

Relativity Fest is Relativity’s big conference, held this year in Chicago between 22 and 25 October. David Horrigan is eDiscovery counsel and Legal Content Director for Relativity, which gives him an important role in the preparation for Relativity Fest.

I will be there, mainly to take part in two panels with an international flavour, and these are the ones which David Horrigan mentions first in this interview.

One of these is called International issues in eDiscovery and data protection. David will moderate and the speakers are Meribeth Banaschik of EY and Karyn Harty of McCann Fitzgerald, as well as me. We will look at international issues including the General Data Protection Regulation (GDPR), the Privacy Shield, new data protection laws and regulations in the US, and updates on international issues around the globe. Continue reading

Posted in Australian courts, Cross-border eDiscovery, Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, GDPR, Privacy Shield, Relativity | Tagged , , | Leave a comment

Epiq-DTI webinar on 3 October: the Office 365 expert

Epiq and DTI are running a series of webinars for those responsible for eDiscovery and information governance in Office 365.

Called The Office 365 Expert, the series kicks off on 3 October with a webinar called Office 365 Fundamentals for the eDiscovery and information governance practitioner. The webinar will look at what Office 365 does, how it works, and the features and functions available within it. The webinar will also cover how in-house legal departments can prepare for adoption of Office 365.

There is more information and a registration form here.

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Posted in DTI, eDisclosure, eDiscovery, Electronic disclosure, Epiq | Leave a comment

Recommind | OpenText webinar on 28 September: 3 Key dashboards for eDiscovery success

OpenText Discovery, the new guise of Recommind and its flagship eDiscovery product Axcelerate, are presenting a webinar on 28 September called 3 key dashboards for eDiscovery success. The webinar’s aim is to go beyond the mechanics of eDiscovery and to look at key eDiscovery metrics used to decide (among other things) whether the exercise has been successful and efficient.

This goes beyond the mayor delivery of retrospective reports. Axcelerate allows legal departments to identify trends, inefficiencies and bottlenecks in the discovery process.

The webinar takes only 30 minutes. The speakers are Hal Marcus and Adam Kuhn of OpenText Discovery. There is more information and a registration form here.

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Posted in Discovery, eDisclosure, eDiscovery, OpenText, Predictive Coding, Recommind, Technology Assisted Review | Tagged , | Leave a comment

Masters Conference and Reed Smith event in London on 28 September

The Masters Conference has a long tradition of producing first-rate events on eDiscovery and the ever-widening range of subjects which surround it. Reed Smith is an international firm with a strong presence in London as well as the US and elsewhere.

On Thursday 28 September, the Masters Conference and Reed Smith come together to present an event called GDPR, Artificial Intelligence, Disclosure And Cybersecurity…What Lawyers Need To Know.

Speakers at the London event include Meribeth Banaschik of EY, Jonathan Armstrong of Cordery, Amie Taal of Deutsche Bank, Jennifer Hamilton of Deere & Co, David Cohen of Reed Smith, Nigel Murray and me. Following my webinar on multimedia with iCONECT last week, I have chosen to talk about that subject and more generally about non-text sources of data.

There is a registration form here.

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New and enhanced machine learning and visual analytics in Brainspace 6

Brainspace has announced a major new release of its flagship investigative analytics solution. Formerly called Brainspace Discovery, the new version is called Brainspace 6. The press release about Brainspace 6 is here and there is a webinar about the new version on 27 September – more on that below.

Discovery remains a major purpose for Brainspace but analytics tools like this can be used for much more than conventional litigation and investigations, and in very different ways.

PwC partner Umang Paw has written in an article called Are you using AI to your advantage in investigations about how powerful extensions to eDiscovery tools are “reinventing the art of the possible in complex investigations” . He says: Continue reading

Posted in Brainspace, Discovery, eDisclosure, eDiscovery, Electronic disclosure | Leave a comment

LawFest 2018 on 8 March in New Zealand and the NZ steps towards electronic courts

To my regret, I have never made it to LawFest, the legal technology and innovation conference founded in New Zealand by Andrew King of eDiscovery Consulting.

With five successful events under his belt, Andrew King can claim to be the main influence of legal technology progress in New Zealand. The target audience is lawyers, CEOs, CIOs, practice managers, IT professionals and government agencies. The programme is not limited to electronic discovery but extends to the use of technology by lawyers across a wide range of activities.

One year, perhaps, I will make it. Meanwhile, I draw it to your attention in the hope that you can attend. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic courts, Electronic disclosure, New Zealand | Tagged , | Leave a comment

The Nuix User Exchange 2017 is nearly upon us

NuixMy next foreign trip is to the Nuix User Exchange running from 17 to 20 September at Huntington Beach California. I very much enjoyed last year’s event and look forward to taking part in this one.

300 participants are expected for 50 sessions, 20 labs and 65 speakers. My own sessions include one called GDPR privacy regulations: preparing for cross-border data management which I will do in the company of John Lapraik of Advanced Discovery in London (Millnet as was), Rebecca Beard of Shore Consulting, Inc, and James Arnold, Principal, Cyber Services at KPMG LLP. James Arnold is also taking part in a GDPR session called The practical practitioner’s guide to GDPR.

I am also part of a keynote panel called The future of decision-making along with Ron Hedges, Senior Counsel at Dentons US LLP and former US Magistrate Judge, Stephen Stewart, Chief Technology Officer at Nuix, Chris Pogue, Head of Services, Security and Partner Integrations at Nuix, and Craig Ball. Continue reading

Posted in Cyber security, Data Security, Discovery, eDisclosure, eDiscovery, Electronic disclosure, GDPR, Nuix | Leave a comment

Technology in Practice in Toronto from 8 to 10 November

In my article about Ricoh’s sponsorship of the eDisclosure Information Project I mentioned in passing that I will be at the Technology in Practice event organised by Commonwealth Legal and Ricoh running from 8 to 10 November in Toronto.

The detailed programme for that event is now published. My main role is to moderate a discussion called TAR trends around the world with US Magistrate Judge Andrew Peck and Maura Grossman, Research Professor at University of Waterloo and one of the best-known luminaries on the technology and practice of technology-assisted review.

I have done several such panels with Judge Peck over the years. The discussion points for this session come from an event I led with Maura Grossman and Gordon Cormack organised by Morgan Lewis in London recently. The opportunity to bring together both these experts is very pleasing.

The presentations are split into four main streams – eDiscovery and Beyond, Connecting to the Future, In the Trenches and Technology Showcase. It is invidious to pick out other sessions from this packed and interesting programme, but my eye falls on one headed Strategies for right-sizing your information governance framework with Eric Mandel of Ricoh USA and Mary Mack of ACEDS, on another Mary Mack session called Career strategies and eDiscovery, and on one called The GDPR Effect – Ripple or Tsunami on the likely effects of the GDPR and the practical implications for North America. Continue reading

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How multimedia data is changing the way we win cases: webinar on 14 September with iCONECT and ACEDS

The expression “multimedia” still has the whiff of leisure about it – the once exciting idea that entertainment can be delivered to us in various active forms for us to watch and listen to.

A great deal of much more prosaic stuff is, however, recorded in multiple media formats. Almost any organisation these days warns you at the start of a telephone call that what you say may be recorded “for training purposes”. CCTV cameras owned and controlled by authorities, business organisations and individuals capture our every move and may be used against (or, indeed, for) us in criminal and civil proceedings. Social media gives us the opportunity to lay down a trail of our own movements as well as following those of others.

All these and many other kinds of non-text data sources are potentially discoverable. They may fall within the scope of our duty to disclose or, just as significantly, may contain the evidence which wins or loses cases for us. How and where will you find these files, and how will you review them? Continue reading

Posted in ACEDS, Discovery, eDisclosure, eDiscovery, Electronic disclosure, iCONECT, iCONECT-XERA, Multi-media discovery | Leave a comment

ILTACON 2017 – and the ship sails on

Despite its title, this post is not about Fellini’s 1983 film And the Ship Sails On in which a great liner is unexpectedly attacked just before the big event which was the purpose of the voyage, leaving Freddie Jones sharing a rowing boat with a rhinoceros.

The nautical parallel here with ILTACON 2017 is less exact: a big ship, already set in the right direction, would maintain momentum into port even if key members of the crew were dropped overboard at the harbour mouth. The engines would turn, the deck events, entertainment and meals continue, and the passengers would just have to assume that the new crew had the next destination in mind, and some idea of how to get there. There was no rhinoceros at ILTACON, but there was a big elephant in the room.

If all that means nothing to you, a quick skim of this article on Legal IT Insider will fill in the gaps for you. The good ship ILTACON did indeed make it into port and the events all went entirely as planned, largely thanks to one or two surviving crew members and a lot of volunteers.  Where to next though, with a new crew and the comms systems apparently out of order?

__________

One year I contemplated skipping ILTACON, the big August event run by the International Legal Technology Association. “They will all think you have died”, my wife said, and she was (as usual) correct, so I went. Continue reading

Posted in ACEDS, AI, Artificial Intelligence, Cross-border eDiscovery, Cyber security, Discovery, eDisclosure, eDiscovery, Electronic disclosure, iCONECT, ILTA, ILTA Insight, Privacy Shield, Relativity | Leave a comment

Standing by early ambitions as kCura changes its name to Relativity

kCura, developer of Relativity, has changed its corporate name to Relativity and its website name to www.relativity.com. There are several articles about the rebranding here, and CEO Andrew Sieja’s blog post explaining the change is here.

You don’t need me to summarise all that for you. Instead, I am going back nine years to look at what I said about kCura when I first came across it. Did my initial reaction stand the test of time? I am not talking about Relativity the software here – I had stopped being a user of any eDiscovery software by 2008 – but about the company and its commitment to discovery education, the place where its ambitions overlap with mine.

I can remember the first time I heard of kCura. I first met Andrew Sieja in July 2008, and said in the article I wrote afterwards (I will come back to that in a minute) “I first heard of kCura about four years ago”.  Assuming I was right about that, that means I first came across kCura in about 2004, before it had occupied the niche in which it is now famous. Someone had suggested to me that kCura’s then mixture of collaboration and knowledge management tools might be adaptable to electronic discovery, and that at least one major law firm was showing interest. I found an email address and wrote to the company, perhaps (I can’t now recall) in case they were looking for a reseller in the UK market (in which I then had a software product of my own). Somewhat to my surprise, I got a reply by return. Nothing came of it, but the name stuck in my head, perhaps because they were polite enough to reply (good manners go a long way). Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, KCura, Relativity | Tagged | Leave a comment

FTI Consulting partnership with kCura offers Relativity alongside Ringtail

“Consolidation” in the eDiscovery software and services markets does not have to imply a merger or acquisition. It can also imply a partnership between two companies under which either can offer a broader range of solutions to their respective clients alongside their independent offerings.

This is what FTI Consulting and kCura intend with the partnership agreement announced at ILTA last week. The FTI press release is here.

FTI’s core software offering is its long-standing (and continually updated) eDiscovery platform Ringtail, now at Version 9.2 (the press release about that, also released at ILTA, is here). Ringtail has a strong visual focus both in its document review tools and in its visual analytics including Document Mapper, Cubes and Mines, all designed to accelerate case strategy and to put as much power as possible in the hands of the users.

FTI also has its scalable visual analytics platform Radiance designed to bring clarity and meaning, as quickly as possible, to very large volumes of data. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, FTI Technology, KCura, Relativity | Leave a comment

Thinking through the management of eDisclosure services – Eversheds Sutherland and OpenText

Back in June, I wrote about the agreement by Eversheds Sutherland to take OpenText’s Axcelerate to enable the firm to take control of its eDisclosure management without having to be responsible for the software and infrastructure. An opportunity arose shortly afterwards to hear about the decision-making process behind this and about the benefits which have resulted from it.

It is surprisingly rare for law firms to promote their use of technology in support of their eDisclosure / eDiscovery services. The main reason why law firms make an investment in technology and in the training which goes with it is to offer a better service to the clients at a lower cost, whilst ensuring that they make a profit at the same time. These are worthy ambitions, signs that the firm is bringing the same commercial nous to its own business as its clients expect for theirs. The handling of documents and data is one of the most expensive components of disputes and investigations. Why, then, are law firms traditionally shy in talking about it?

Part of the problem, perhaps, is that the mechanics of service delivery are not considered worthy of attention from marketing departments. I also hear from time to time of law firms and service providers who have client offerings of one kind or another – a technology package or an attractive pricing scheme – but do not promote it until the client connection is already made, so the only people who hear about this bait are the ones who have been hooked already. No, I don’t understand it either. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, OpenText, Recommind | Tagged | Leave a comment

Technology the dominant theme in the Lawyer Litigation 50 2017

It is not surprising to find that The Lawyer’s Global Litigation 50 2017 (registration required) has a strong emphasis on the use of technology in the management of litigation and other disputes. The introduction by Craig Earnshaw, Senior Managing Director at FTI Consulting (which sponsored the report) emphasises three things which make this inevitable:

The growing expansion of, and dependence on, the data underpinning global businesses;

The availability of new technology tools to manage that data efficiently and cost-effectively

A corresponding expectation on the part of clients that the lawyers will understand this technology and that they know how to use it to give strategic advice promptly (not just to proceed with the procedures required by courts or regulators).

Court acceptance of predictive coding, led by the Pyrrho case, is only the start, Craig Earnshaw says. The demands of regulators have increased along with the sharp rise in data volumes; eDiscovery skills and tools are adaptable for use with information governance programmes and the new focus on identification of personal data which the GDPR brings. Continue reading

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Welcome to Ricoh as new sponsor of the eDisclosure Information Project

There is more than one reason why I am very pleased to announce that Ricoh has become a sponsor of the eDisclosure Information Project. The most obvious reason is that Ricoh is a major force to be reckoned with in US eDiscovery; another is that Ricoh has a strong presence in Canada via its ownership of Commonwealth Legal. One of my themes in the last year has been the interchange of civil procedure rules and ideas between common law jurisdictions. The link with Commonwealth Legal brings an opportunity for me to speak at their Technology in Practice event in Toronto in November – I will come back to that below.

Ricoh eDiscovery Services is a comprehensive set of end-to-end solutions supported by a team of highly qualified eDiscovery experts. It includes digital forensics services, secure hosted technology based on Microsoft Azure, Managed Review Services (known as Intelligent Review in Canada), and a full Production and Presentation Service. Continue reading

Posted in Commonwealth Legal, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Ricoh, Technology in Practice | Tagged , | Leave a comment

OpenText extends its reach again with the acquisition of Guidance Software

The once-straitforward business of eDiscovery has extended its reach, its software and its skills into related areas, embracing ever-wider concepts of information management. As it has done so, the market has seen increasing consolidation as bigger companies buy smaller ones or equals merge.

Fresh from its acquisition of eDiscovery and analytics company Recommind, OpenText has announced an agreement to acquire Guidance Software, makers of EnCase forensic and security tools.

The acquisition will complement and expand OpenText Discovery which already embraces search, the extraction of data, its classification, and its review and analysis. It will also be a boost to the OpenText’s information security capabilities by the addition of Guidance Software’s long-standing and respected forensic security and endpoint solutions. Continue reading

Posted in Cyber security, Data Security, Discovery, eDiscovery, Forensic data collections, Guidance Software, OpenText, Recommind | Leave a comment

Webinar on 8 August from EDRM and NightOwl Discovery: practical tips for a successful first TAR project

NightOwlEDRM / Duke Law is running a series of webinars designed to help lawyers and judges on various aspects of technology-assisted review. It is part of preparation for the Duke Conference on TAR to be held in Arlington on 7 to 8 September.

The webinar on 8 August is called Practical tips for successful first TAR project and is being run in conjunction with NightOwl Discovery. George Socha will moderate and the participants are Kelly Atherton, Senior Analytics and Review Manager of NightOwl and Sam Merritt, Senior Portfolio Manager at NightOwl.

Their subject is low-risk use cases for a first predictive coding project, including practical suggestions on setting up a project and training the system to categorise and rank documents. Continue reading

Posted in Analytics, Discovery, eDiscovery, Litigation Support, NightOwl Discovery, Predictive Coding, Technology Assisted Review | Tagged , | Leave a comment

FTI Consulting: how the general counsel can shape information governance

Ethical Boardroom carries an article called How the general counsel can shape information governance by Jake Frazier and Sonia Cheng of FTI Consulting. It focuses less on the IT, data security and regulatory aspects of IG and more on that often-overlooked aspect, reputational risk and ethical duties.

A perhaps exaggerated focus on fines and penalties has relegated the equally important matter of “trust in the brand”. There was a time when bad news about corporations was only to be found in the business sections of newspapers. Web sources, whether owned by responsible reporting organisations or populated by eager critics on Twitter or Facebook, mean that news, particularly bad news – and more particularly news affecting consumers – travels very quickly, and often inaccurately.

This affects the perception of a corporation by governments, regulators and shareholders and, equally importantly, by clients and customers. Continue reading

Posted in Discovery, eDiscovery, FTI Technology, In-house counsel, Information Governance | Tagged , | Leave a comment

Off to ILTA in Las Vegas to talk about EU data and to do some interviews

ILTA is the International Legal Technology Association. ILTA works hard all year encouraging the sharing of ideas between those whose business involves (or should involve) the application of technology to a wide range of legal functions and issues.

For many, “ILTA” is synonymous with ILTA’s big annual conference held in August each year. This year ILTACON2017 is in Las Vegas, and I am going, as I always do.

I go there wearing my press hat and it is one of the few events I attend whether or not I am participating in a panel. Quite often, however, I end up taking part in something, and this year I am moderating a panel called Managing data from the EU during litigation. Continue reading

Posted in Consilio, Data privacy, Data Protection, Discovery, eDiscovery, GDPR | Tagged | Leave a comment

Interview: Max Cockerill of Blackdot Solutions talks about Blackdot’s integration with Relativity

One of the strengths of kCura’s Relativity is the flexible home it offers to other companies whose products involve the collection and use of data. An increasing number of niche products are extending their uses, and their user bases, by integration with Relativity.

One such is Blackdot Solutions, whose arrangement with kCura is described in this Legal IT Insider article. At Relativity Fest in London I interviewed Max Cockerill of Blackdot Solutions and asked him about Blackdot’s software integration with Relativity.

Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, KCura, Relativity, Relativity Fest | Leave a comment

Heart pacemaker data admissible in arson trial

I have made reference recently to various sources of data which potentially provide information for use in civil and criminal proceedings and which go well beyond conventional sources such as email.

One of those was the data created by a heart pacemaker in a case involving an allegation of arson in Ohio. A cardiologist who looked at the data found inconsistencies between the information returned by the device and the story told by its wearer. A judge in Ohio has now ruled that this data is admissible.

There is an article about it, appropriately enough in a website called Insurance Fraud News, which you can find here.

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ACEDS webinar with Ricoh on 26 July on eDiscovery hiring and careers

ACEDS, the Association of Certified eDiscovery Specialists, works to encourage and train people to acquire skills and certifications in eDiscovery.

On 26 July, Mary Mack, Executive Director of ACEDS, joins David Greetham, VP, eDiscovery Sales and Operations at Ricoh USA, Inc to look at the results of a survey covering many aspects of recruitment and employment in the eDiscovery industry.

Among other subjects, they will look at sources of information for those interested in boosting their knowledge, including conferences and other information sources.

There is more information and registration details here.

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Managing data with Nuix Insight

NuixNuix brings together the disciplines of investigations, eDiscovery, cyber security and information governance, all of which involve extracting and managing useful information from data.

An article called Nuix Insight: a natural progression, traces the development of successive Nuix products to deal with a specific technical problem – how to process a range of file types quickly and accurately and make the resulting data available for searches.

Achieving that technical objective is one thing. Much of Nuix’s more recent work has been directed towards making both the searching and the interpretation more intuitive for users and in allowing them easily to manage tasks and collaborate as teams. A significant element of that is data visualisation. Continue reading

Posted in Data visualisation, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Nuix, Regulatory investigation | Leave a comment

Consilio: can you trust law firms with your data?

ConsilioI remember as a young solicitor being at a meeting with a partner who was asked about the security of information held in the offices. The security, he said, lay in the fact that it was all too boring and too difficult to find within the office. He was, of course, being flippant, but his off-the-cuff answer is perhaps more-or-less accurate for many law firms, at least relative to the care which their clients take of their data while it is on their own systems.

eDiscovery and information management company Consilio has looked at this issue in an article called Can you trust your law firms with your data? This matters, partly because a recent survey suggests that one in four larger law firms has experienced a security breach; it also matters because, as the article puts it,:

…outside counsel possess a host of sensitive and invaluable data, such as trade secrets, patent applications, details about proposed business transactions and other valuable confidential information about their clients…”

This issue acquires greater focus when you appreciate that the business of giving legal advice generally involves collecting the most important documents together for analysis and review. That flippant answer about the data being “too boring” disappears when the raw data has been carefully filtered so as to leave just the most critical documents in one place. Continue reading

Posted in Consilio, Cyber security, Data Security, Discovery, eDisclosure, eDiscovery, Electronic disclosure | Leave a comment

Post-Brexit data flows between the UK and the EU

An article in The Register headed Another Brexit cliff edge: UK.gov warned over data flows to EU draws attention to a report by the House of Lords EU Home Affairs Sub-Committee called Brexit: the EU Data Protection package.

Just one paragraph will suffice to convey the message:

Although the government has made numerous pledges to retain “unhindered and uninterrupted” data flows after Brexit, the committee said it was “struck by the lack of detail on how the government plans to deliver this outcome”.

Leaving aside my own view that Brexit is a self-imposed disaster, this particular aspect of it has been causing deep concern. This is not just wearing my eDiscovery hat with its obvious focus on cross-border discovery, information management and GDPR compliance, but because of the our enormous dependence on data flows ancillary to trade, particularly transatlantic trade. Continue reading

Posted in Brexit, Cross-border eDiscovery, Data Protection | Leave a comment

Interview: David Wallack of NightOwl Discovery on the GDPR and the use of analytics beyond disputes discovery

NightOwlDavid Wallack is eDiscovery Counsel and Director of Legal Operations at NightOwl Discovery. NightOwl is particularly well placed to help its corporate clients with the implications of keeping and managing data in the EU because, in addition to its long-standing US eDiscovery practice, it has facilities in Dublin and in Düsseldorf.

Much of NightOwl’s business involves multi-year contracts with corporate clients to manage their information for a wide range of purposes, not just for disputes discovery.

With the General Data Protection Regulation getting closer, I asked David Wallack what NightOwl is doing to help its clients get ready for the GDPR, for the implementation of Office 365, and in connection with the use of analytics for information management.

Continue reading

Posted in Cross-border eDiscovery, Data privacy, Data Protection, Discovery, eDiscovery, NightOwl Discovery | Tagged , | Leave a comment

What will your disclosure conduct look like under the judicial spotlight?

Sometimes you look at a judgment and marvel that any human has got his or her head round the complexity of the subject matter, the law and the procedure involved in it. One such is Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd which involved defects in an industrial process, complex contract terms, conflicting expert evidence, detailed allegations about breaches and defective work, arguments about repudiation and quantification of the cost of remedying defects; in addition, there were multiple procedural failures, disclosure defects, multiple changes of counsel and….well, you name it, this case had it.

Gordon Exall of the Civil Litigation Brief has already written four posts about it. The first was headed Deficiencies in disclosure: reading this judgment is not like watching paint dry. He is right – I would sit watching paint dry, grass grow or any similar process rather than read this judgment again, still less try to summarise it.

I don’t think you need to read it either if your primary interest is in disclosure. I don’t think you even need to read too closely the parts directly relating to disclosure: they did not involve analysis of any particular rule whose close interpretation will help you; they did not obviously involve a failure of eDiscovery technology; there may or may not have been bad faith involved here – it is hard to tell. It just all went wrong. Continue reading

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Vince Neicho brings decades of law firm experience to Integreon

Vince Neicho, long-time Litigation Support Senior Manager at Allen & Overy in London, has joined Integreon as VP and Expert Legal Solutions Consultant. A day or two after the announcement, LinkedIn served up the information that Vince had been at Allen & Overy for 42 years. The press release about the appointment is here.

I knew Vince’s name for a long time before I met him. He was nicknamed “the Godfather of English litigation support”, and his name turned up whenever there were discussions about the civil procedure rules and, in particular, their inter-relation with the real-life business of managing disclosure. Continue reading

Posted in Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Integreon, Lord Justice Jackson | Tagged , | Leave a comment

Disclosure obligations include the form and substance of list as well as its completeness

Barrister Gordon Exall has just reached the fourth anniversary of his first publishing his Civil Litigation Brief, now an indispensable guide to civil procedure.

In one of his most recent reports (never say “the most recent” with Gordon, because he is bound to have published another one before you next look) he tells of a case called Powell -v- Watford Borough Council, in which he appeared for the ultimately successful appellant / claimant, where disclosure failures play a major part.

You can read Gordon Exall’s summary here (there is not yet a public version). The bit you might like to focus on is the commentary on the form and substance of the list. The response to a peremptory order for specific discovery came in the form of a letter simply stating that searches been made and that there were no documents of the kind referred to in the order. The extent of the defendants’ search can be judged by the fact that at least one such document was found by a search on the Internet. Continue reading

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Cross-border discovery and data protection in Dublin with the Sedona Conference

I am back from the Ninth Annual Sedona Conference International Programme on Cross-Border Discovery and Data Protection Laws organised by The Sedona Conference Working Group 6 (Sedona Working Groups are explained here). It took place in County Kildare, just outside Dublin on 20 to 21 June, and if I seem slow at writing about it, that is not just because of the principle that “what is said at Sedona stays in Sedona”.

Just as compelling a disincentive to settle down and write about is the mass of useful material, both written and oral, which is made available to WG6 members. How can one start summarising all that? The whole thing is a deep immersion in cross-border discovery and data protection which is unmatched anywhere else. It serves both as a top-up and a stimulus, with a skilled faculty pointing the way forward as well as summarising what has already happened. Continue reading

Posted in Brexit, Consilio, Cross-border eDiscovery, Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Epiq, FTI Technology, NightOwl Discovery, Sedona Conference | Leave a comment

ICO paper on Bring Your Own Device (BYOD)

The UK Information Commissioner’s Office (ICO) publishes several short papers designed to increase awareness of the technical, security and legal implications of various aspects of data holding.

These documents are not, and do not purport to be, detailed explanations of their subject, but they are helpful reminders which may encourage organisations to seek more detailed advice or, at least, to consider things which have hitherto gone unregarded.

One such paper is called Bring Your Own Device (BYOD) . It is short and succinct on the risks faced by an organisation and its data controller in circumstances where organisational control is limited because the user owns, maintains and supports the device. Continue reading

Posted in Data privacy, Data Protection, Data Security, GDPR, Litigation Support | Leave a comment

Interview: Jeff Schmidt of Park IP Translations talks about language management and its use with Relativity

One of the benefits of kCura’s Relativity is the ability it gives to specialist software companies to incorporate their own applications into it in a way which allows them to tap into Relativity’s core strengths.

One such speciality is the management of foreign languages in electronic disclosure. At Relativity Fest in London, I asked Jeff Schmidt of Park IP Translations to tell me about language management and how Park IP Translations works with Relativity.

The term “language management”, Jeff Schmidt says, implies a considered approach to managing foreign languages within the case strategy from the very beginning of a case. Continue reading

Posted in Audio discovery, Discovery, eDisclosure, eDiscovery, Electronic disclosure, KCura, Relativity | Leave a comment