Supporting witness memory with the electronic evidence trail

Oh Lord, you will say. He’s only just given us one of his periodic lectures on the importance of understanding the trail of electronic evidence we all leave behind us. Can’t he give us a break for a few weeks?

Last Friday, I published an article called Finding the evidence for hot tub murder and the red-headed children of Greendale. Its purpose was to re-state my frequent reminder that most of us leave an electronic trail which, while not necessarily proving what we were doing or saying, or showing where we were (or were not) at a particular time, creates a presumption which may either support our recollections or undermine them.

The following day, Gordon Exall published on his excellent Civil Litigation Brief an article called Lawyers, litigation and memory: the Memory Illusion. It refers to a book by Dr Julia Shaw called The Memory Illusion: Remembering, Forgetting and the Science of False Memory. Gordon Exall explores the factors which influence the recollection of a witness, including the potential bias of loyalty – the “desire to assist, or at least not prejudice, the party who called the witness or that party’s lawyers” – as well as the effect of the litigation process on recollection. Continue reading

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Ralph Losey: the top 22 most interesting [US] eDiscovery opinions of 2016

As I sit contemplating collecting together the 2016 eDisclosure-related judgments from England and Wales, I have to admire Ralph Losey who kicked off the year with a 30,000+ word essay on the Top 22 most interesting US eDiscovery cases of 2016.

Whether you read it all at once or keep it as a (well hyperlinked) work of reference, it is an immensely useful collection of judicial opinions on a subject which continues to dominate US litigation.

Top of Ralph Losey’s list is US Magistrate Judge Andrew Peck’s decision in Hyles v New York City in which he declined to order an unwilling party to use technology-assisted review – I wrote about that decision here, concluding that a UK judge faced with similar facts might well feel entitled to make such an order because of the rather different principles which apply in England and Wales. Continue reading

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Interview: Jeffrey Seymour of Morae Legal talks about RelativityOne and corporate cloud adoption

relativity2016logoWhile I was at Relativity Fest, kCura introduced me to Jeffrey Seymour of Morae Legal, and I talked to him about Morae Legal’s work with corporate legal departments and about kCura’s RelativityOne and corporate cloud adoption.

Jeffrey Seymour says that Morae Legal’s aim is to help corporate legal departments with information management and discovery. Continue reading

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Finding the evidence for hot tub murder and the red-headed children of Greendale

A murder case in which a voice-activated device may hold the vital clue prompts one of my periodic reminders that potentially-discoverable data lurks in an increasing number of devices and databases, often without our realising it. And just how long did Postman Pat take on his delivery round?

David Horrigan of kCura gives us an interesting article (Murder, Data Privacy and the Internet of Things) about a lads’ evening which ended with one of them floating face down in the hot tub. As David put it, the survivor went from “hot water literally to hot water figuratively” as the police proceeded with their procedures and made their enquiries.

The only potential witness was a tall slim figure called Alexa (well, strictly called Amazon Echo, but generally addressed as Alexa). Did Alexa hear anything which might help the police? David Horrigan points out that the Amazon Echo does not itself store data – that sits in Amazon’s cloud. As Craig Ball says in his comprehensive and interesting article The Internet of Things meets the four stages of attorney e-grief), you go for the database not the device in these circumstances. Amazon is refusing to comply with a request for the records.

I do not need to summarise either David Horrigan’s article or Craig Ball’s – they are both well worth reading anyway. I use the story as a mounting-block for my regular hobbyhorse: are you remembering all the potential sources of electronic data when you consider what evidence exists and what to collect? You won’t collect the evidence if you don’t think to look for it. Continue reading

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From pillar to post – the eDiscovery conferences at the end of 2016

If I did not write up each of the conferences and events of the closing months of 2016 as they happened, that is only partly because the end of each one seemed merely to herald the preparations for the next. Aggregating them in a single post, as I do here, has two virtues – it saves your time and mine, and it helps to point up the diversity of the subject matter which now falls under the broad heading of eDiscovery.

“Stories of Data” with Nuix

The last event which I wrote up in full was the Nuix User Exchange in California in September. My post Panama Papers and Data Protection at the Nuix User Exchange is here. There are two follow-up points, one of which is that the Nuix User Exchange 2017 runs from 17 to 20 September 2017, again at Huntington Beach. There is an early bird rate applying until 20 January and you can register here.

The other is the result of the “Stories of Data” competition which Nuix announced at the User Exchange. One of the Nuix themes is that data tells stories, and the competition was to encourage people to tell their stories about using data in an investigation. I was asked to pick the winner and my commentary is here. Continue reading

Posted in ACEDS, Brexit, Cross-border eDiscovery, Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Epiq, GDPR, KCura, Predictive Coding, QuisLex, Relativity, Relativity Fest, Technology Assisted Review | Tagged , , , , , , , , | Leave a comment

Interview: Richard Dilgren of FRONTEO talks about the increase in applying analytics to eDiscovery

Fronteo_200Richard Dilgren is VP Data Science and Strategy at eDiscovery provider FRONTEO. I talked to him at Relativity Fest about the use of applied analytics in eDiscovery (the interview is below).

Email threading, he says, has become “ubiquitous” on large matters and enquiries about technology-assisted review have substantially increased. FRONTEO is seeing many more requests for customisation than hitherto which implies increased awareness on the part of clients.

Richard Dilgren says that FRONTEO spends a lot of time promoting the advancement of technology, and that this helps explain the increase in both interest and awareness on the part of clients. Clients seem to be informing themselves ahead of the use cases which they anticipate.

The increasing use of technology inevitably drives an increase in the number of challenges from opposing counsel. Richard Dilgren says that the most frequent challenge stems from the fear that opponents will not be able to search the content. FRONTEO helps people meet those challenges by talking to opposing lawyers and their vendors to overcome their objections.

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Xerox Business Services becomes Conduent

conduent_200With effect from today, Xerox Business Services completes its separation from Xerox and becomes Conduent, an independent public company trading on the New York Stock Exchange.

The announcement is here and there is a video here.

Conduent offers business process services in transaction processing, automation, analytics and related subjects. This covers compliance and risk solutions, eDiscovery management and a wide range of litigation review, management and consulting services.

The master webpage for these services is here with links to, among other things, the OmniX Hosted Review Services, the Relativity Hosted Review Services and the Viewpoint All-In-One Platform.

The always excellent eDiscovery and Compliance blog can be found here.

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Wishing you all a Happy Christmas and a Prosperous New Year

Time to draw stumps for the year, not because I don’t have more to write, but because I doubt there are many people around to read it if I did.

fatrobs

This is “our” robin, known for obvious reasons as “Fat Robs”, the most seasonal picture I took this year (albeit in early summer).

Thank you for (as the case may be) sponsoring, reading, talking, listening, sharing platforms and following on Twitter during the year.

Wishing you all a Happy Christmas and a Prosperous New Year. I think we can assume that it will be an interesting one.

Chris Dale

 

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My SCL predictions for 2017 – the snarling of a cynical old hack

scllogo1Computers & Law, the online presence of the Society for Computers & Law, asks every year for our predictions for the following year.

Most people, quite properly, use this opportunity to give straight-up-and-down ideas of where we are going and what we might expect. I do that all year anyway, and use this opportunity to inject some seasonal cynicism into the business of prediction.

eDiscovery / eDisclosure does not operate in a vacuum, although some of its practitioners behave as if it were a free-standing virtue, detached from everyday business. It sits in a context of disputes, investigations and regulatory compliance, and there is more than enough of that around to keep everyone busy. If asked, as I am from time to time, what future I see for those with eDiscovery products, services and expertise, I am optimistic, whether they are providers of such things or lawyers who practice with them. Continue reading

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FTI stored webinar: Predictive Coding, Building User Confidence

FTI LogoThat long empty period between Christmas and New Year is a good time to catch up on webinars and other things which take time you may not have during the rest of the year. I have the answer for you.

FTI Technology keeps a large and very good store of webinars and other resources which are available on-line. One of the significant themes of 2016 has been predictive coding and I commend to you a webinar given by FTI’s Jason Ray earlier this year.

It is called Predictive Coding, Building User Confidence and is well illustrated (in line with FTI’s strong emphasis on graphics). As its title implies, it is designed to help lawyers and others be confident in technology of this kind when considering how to approach the large volumes, tight deadlines and budget constraints we will undoubtedly face in 2016.

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Patrick Burke of Seyfarth Shaw on corporate readiness for the GDPR and Privacy Shield

Patrick Burke and I have been speaking together about privacy and data protection since back in the days when US corporations and lawyers saw these subjects merely as irritations. Patrick is now eDiscovery Counsel at Seyfarth Shaw and things have changed, as I discovered when I interviewed him at Relativity Fest recently.

Continue reading

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Interview: Scott Berger of Epiq on tailoring managed services to client needs

Epiq_logo_200Scott Berger is Senior Director at Epiq. In this interview I asked him to explain what Epiq means by “managed services” and to give me an example of an implementation which worked for the benefit of the client.

There are many elements in an eDiscovery service and in individual projects. With applications, infrastructure and the support wrapper given by skilled people, the whole thing involves risks and unknowns. Managed services is a common business practice in other areas of corporate activity. Continue reading

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Guidance Software’s Enfuse 2017 – Early Bird Discount closes on 6 January

enfuse2017Guidance Software’s Enfuse Conference takes place in Las Vegas from 22 to 25 May 2017. Enfuse covers all aspects of security and digital investigations across three days.

I have been going for many years (I did three panels there last year) and it is always one of the most interesting events of the year, not least for its combination of technical, legal and business subjects covered there.

The reason for writing about it now is that the Early Bird Discount expires on 6 January. The saving is significant and you would do well to catch it now.

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FRONTEO plans expansion into the Chinese market

Fronteo_200FRONTEO, which specialises in global eDiscovery and big data analysis services using AI, has signed a memorandum of understanding with Idea Capital Group in order to expand FRONTEO’s eDiscovery services in China. There is a press release about this here.

FRONTEO has a lot going for it, both as to the market in China and as to its own experience. One of the measures of growth is the number of patent applications filed each year; more than 1 million were filed last year and this alone is seen as a source of prospective litigation, quite apart from other commercial and industrial developments in China. Continue reading

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Xerox Legal Business Services brings oversight and platform choices to corporate eDiscovery

XeroxThis is the time of year when we are all asked to say what were the important developments of 2016 and to look forward to 2017. In a year which has brought further judicial approval of predictive coding, the beginnings of mainstream acceptance of artificial intelligence, and significant developments in privacy and data protection, the trend at the top of my list is greater oversight of eDiscovery by corporations.

Xerox Legal Business Services (to be part of Conduent from 3 January) ) is particularly well placed to offer the kind of overview which corporations need. XLS has offices throughout the US, Europe and Asia. With offices throughout the US, in Europe and in Asia, it has long been a significant provider of hosted eDiscovery services using its own technology, and now offers Relativity as a managed service alongside its own Viewpoint All-in-One eDiscovery Platform. Continue reading

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Doing a keynote with Judge Peck at the AccessData 2017 User Summit in San Diego

ACCESS-DATA-logoThere is of course much more to the AccessData 2017 User Summit than the keynote referred to in my heading, but that is what I am chiefly going there for, so I will put it at the top.

adusersummitThe AccessData 2017 User Summit runs from 16 to 19 May at the Catamaran Resort Hotel next to the beach on San Diego’s Mission Bay. Judge Peck and I are opening the day on Thursday. We will wait and see what the beginning of 2017 brings us before deciding on our topics – one of the joys of doing these things with Judge Peck is that you can throw him anything, from predictive coding to rules changes to cross-border discovery and everything in between, and know that you will get an interesting and informed response. Continue reading

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All-in-one review and processing solution from Nuix and iCONECT

nuixiconectIn New York last February I interviewed Eddie Sheehy, CEO of Nuix, and Ian Campbell, President and CEO of iCONECT, about their plans for closer integration. The interview is below.

The integration continues, both as a technical matter and in marketing terms, as this page from the Nuix website shows.

Everyone benefits from this arrangement – not just Nuix and iCONECT themselves, who find in each other complimentary qualities without much overlap, but for legal service providers, project managers and lawyers who are the end users. Continue reading

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Recommind: a confident tone as the OpenText acquisition beds down

RecommindOpenTextIn October I interviewed Simon Price, UK managing director of Recommind, when he sounded a confident note both about the benefits of Recommind’s acquisition by OpenText and about the wider context of cloud adoption of software for eDiscovery and for wider data management purposes. You can find that interview here.

That confident tone continues in a report of an interview with Simon Price on Legal IT Insider published on 23 November and headed Recommind: strategy and a change of direction?

Among the things reported there is that a couple of deals have already been made among existing OpenText clients. This was an important part of the OpenText rationale for acquiring Recommind and it is clear that no time has been wasted in introducing Recommind’s benefits to OpenText’s large client base. Simon Price says that Recommind “delivered double-digit growth to OpenText in our first quarter”.

Simon Price talks also about Recommind’s appointment of Legastat as its first ever Axcelerate cloud partner in the UK disclosure market, a deal which, as the Legal IT Insider article observes, “implies that OpenText are not going to kill off eDiscovery”. I have to say it did not enter my head that they might. Continue reading

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Interview: Karyn Harty of McCann FitzGerald on the Brexit implications for Ireland

karynhartyI did a predictive coding panel with Karyn Harty of Dublin-based firm McCann FitzGerald while we were at Lawtech Europe Congress in Brussels recently. It seemed an appropriate place to ask Karyn Harty for her view on the implications of Brexit for Ireland.

Karyn makes it clear the membership of the EU is crucial to the Irish economy and that there is no appetite in Ireland to leave the EU. The adverse economic consequences will be significant. There are, however, opportunities in, for example, financial services, and we are likely to see insurance companies and others move out of London; Dublin must compete with Frankfurt, Paris, Amsterdam and Luxembourg. Karyn also identifies an opportunity in an energy link between Ireland and France which may not previously have been considered.

There are also opportunities relating to the handling of data if Brexit happens – Ireland has a highly-educated English-speaking population and is already home for many international technology companies for good reasons which go well beyond tax-related ones. Continue reading

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Interview: Meribeth Banaschik of Noerr talks about setting up an in-house legal team

relativity2016logoMeribeth Banaschik is a US attorney at Noerr LLP in Düsseldorf, Germany. She is also qualified as a solicitor in England and Wales, so she has a wider range of qualifications than most.

I interviewed her at kCura’s Relativity Fest in Chicago, asking her about her experience in setting up in-house eDiscovery teams. The interview is below.

The ambition, Meribeth said, was to turn a cost centre into a profit centre. After analysing the steps in the typical discovery process, including vendor selection and project management, and by taking small steps, the team developed an in-house legal hold expertise, as well as processes for collections, early case assessment and other stages.

It is not just large organisations with much litigation who could benefit from this, Meribeth Banaschik says. Mid-sized organisations can also benefit, not only for disputes work but for contract management, compliance or audit. The skill set, she says, is much the same.

kCura’s staff were extremely helpful in the early stages of the project, Meribeth says, helping through “complicated times” and giving confidence to those building the process.

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Webinar from ACEDS and iCONECT on 19 December: selecting your next eDiscovery review platform

XERA_logoweb_225pIan Campbell of iCONECT and Jeff Kirksey of Sutherland Asbill join forces with ACEDS to produce a webinar on 19 December called It’s time for a change – selecting your next eDiscovery review platform is easy.

iCONECT is, of course, the owner and maker of the iCONECT-XERA document review platform, and Ian Campbell won’t mind a bit if the upshot of this webinar is that you choose XERA for your next project.

The subjects covered, however, are ones which must be objectively considered by all potential users of any eDiscovery tools – licensing, pricing, total cost of ownership, innovation, market longevity and product support are all referred to in the webinar description as important factors.

There is more information and a registration form here. Continue reading

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William Butterfield dies: eDiscovery education will miss him

billbutterfieldI am sorry to see that Bill Butterfield has died, depriving his firm, Hausfeld LLP, and the wider eDiscovery world, of a highly-respected and well-liked speaker and educator.

I did not know him well, but he is one of those who made me welcome in the US eDiscovery scene from my earliest forays across the Atlantic.

Whenever we met, he suggested that we try and do something together but, as with so many such ideas, it never came to pass. I was sorry about that before his death, and even more sorry now.

The Sedona Conference has a tribute to him and there is an article here from Legaltech News.

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FTI webinar today: International data privacy – litigation and investigations in 2017 and beyond

FTI LogoI must have missed earlier announcements about this webinar, but it looks interesting and it is today, so I hasten to direct your attention.

FTI Consulting has joined forces with Bloomberg to produce a webinar called The changing international data privacy landscape – litigation and investigations in 2017 and beyond. Its theme is that changes and prospective changes like Brexit, the US presidential election, the Privacy Shield and the GDPR will all have effect on the way US corporations manage their data beyond US borders, specifically in the EU, the UK and the Asia-Pacific region.

Not all these things have happened yet, but the time to start dealing with them is now. The webinar will consider, among other things: Continue reading

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Technology-assisted review in Australia – two cases and a Practice Note all worth considering elsewhere

Australia has now joined the common law jurisdictions in which courts have permitted the use of technology-assisted review and got involved in prescribing the mechanics. In one case it was the judge who was the first to raise the subject. The courts of England and Wales have a right and duty to manage cases actively, and a wide discretion to do what is right. The judgments of respected foreign courts can be persuasive.

Much of my time this year has been spent on the commonality between jurisdictions when it comes to the use of technology in civil litigation. The high point, perhaps, was my panel at kCura’s Relativity Fest where we brought together US Magistrate Judge Peck with the US perspective, Karyn Harty of McCann FitzGerald for Ireland, and Ed Spencer of Taylor Wessing and Dan Wyatt of RPC for the view from England and Wales.

Relevant cases from each of these jurisdictions called upon prior cases from other jurisdictions in considering whether it was appropriate to use technology-assisted review / predictive coding to narrow down the set for discovery / disclosure. The general sense is that this technology is increasingly acceptable in an appropriate case (and one must stress that the nature of the case matters in all these jurisdictions).

Now Australia has joined in, with two cases from Victoria together with a Practice Note of the Supreme Court of Victoria which covers the use of technology-assisted review as well as other matters related to technology.

I do not intend to give a deep analysis of either the judgments or the Practice Note. It suffices to point you to them, to a useful summary by Allens called Predictive coding gets green light from an Australian court, and to an article by Angela Bunting of Nuix called Technology Assisted Review Heating Up in Australia. Continue reading

Posted in Australian courts, Discovery, eDisclosure, eDiscovery, Electronic disclosure, FTI Technology, Predictive Coding, Technology Assisted Review | Leave a comment

Corporate Counsel Round Table 2017 on 30 January in New York

For the last two years I have taken part in a Corporate Counsel Round Table developed and run by William Belt, now at CDS.

I am very pleased to have been asked to do it again in January in the soberly impressive premises of the Yale Club of New York City in the Vanderbilt Avenue.

The agenda will include presentations on the new Federal Rules of Civil Procedure, a case law update, a judicial panel, and a corporate only, directed thought-sharing session. As always, this event is for corporate registrants only and will be a no-selling confidential gathering. Continue reading

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Lawrie Hall of CYFOR talks about using technology to help meet deadlines in eDiscovery

Disclosure failures in the courts fall into two main categories – either someone has failed to read the rules properly or a deadline has been missed, usually because the work involved was underestimated.

In this short video, one of a series given by CYFOR, Lawrie Hall, Head of Case Management at CYFOR, talks about how modern technology can be used to help lawyers comply with deadlines.

Continue reading

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Guidance Software webinar on 14 December: where InfoGov meets InfoSec – new approaches to data-centric security

GuidanceSoftware_200One of the presenters of this Guidance Software webinar is Barclay Blair, founder and Executive Director of the Information Governance Initiative. It is clear before you start reading about it, therefore, that the webinar will involve more than pure technology, since Barclay Blair is a long-time advocate of proper governance, information and control of corporate data.

The other speaker is Paul Shomo, Senior Manager of Strategic Partnerships at Guidance Software. Between them, the speakers will look beyond perimeter-based data breach and at how Chief Privacy Officers and Chief Information Security Officers can work together to safeguard personally identifiable information, non-public information and sensitive corporate data. Continue reading

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Fronteo acquires Essential Discovery, Inc. and produces a new ROI Analyser

Fronteo_200Fronteo has been busy while I have been away at the autumn’s events, not least with a client testimonial video called Great Achievements filmed with Time Warner Cable

during the summer.

Fronteo has acquired Essential Discovery, Inc., a boutique discovery company specialising in document review. Essential Discovery has review centres in San Francisco and Las Vegas together with what they call “pop-up capabilities” across the US and internationally.

The acquisition reflects the growing demand for “efficient, reliable and cost-effective review services” allowing the combined companies to offer increased value to law firms and corporations with standardised review processes.

The combination of Fronteo and EDI now has approximately 1,300 permanent seats for review projects across the US with others available internationally for cross-border projects. Continue reading

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Interview: Phil Favro talks about CTRL’s initiatives on TAR and Information Governance

CTRL2CTRL is an industry forum dedicated to advancing the discussion on the use of technology and analytics in the practice of law. Its sponsors include Relativity and Recommind (now OpenText)

At Relativity Fest I interviewed Philip Favro of both eDiscovery provider Driven and of CTRL, and I asked him about the relationship between CTRL and kCura and about CTRL’s work.

Phil Favro said that kCura has invested resources and time into CTRL’s work on the extension, proliferation and use of advanced analytical technologies. That relationship has helped with the education of organisations and lawyers on the benefits of analytics and on how best to use analytical technology.

Phil Favro talks about the 2016 TAR Guidelines and the Information Governance Playbook which CTRL has published. The TAR Guidelines address complex issues such as whether you should disclose your use of TAR, the protocols made with opposing counsel, and subjects like the blending of search terms and TAR. Continue reading

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Epiq and DTI: better together

Epiq_logo_200I reported in August that Epiq had been acquired by OMERS Private Equity and Harvest Partners and that it was to be brought together with DTI to make a new and very large technology and services provider.

The extent of the breadth and depth thus offered, and particularly the geographical spread, is illustrated by an infographic in an Epiq post called Epiq and DTI: Better Together.

With 100 offices around the world and 12 data centre locations, the combined business provides a full range of services relating to litigation, investigations, financial transactions, regulatory compliance and other legal matters, for eDiscovery, class-action, general legal process outsourcing and a range of other business services. Continue reading

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Eaglesham v MoD attracts US attention in Seyfarth Shaw’s blog

The US has not hitherto taken very much notice of eDiscovery / eDisclosure developments outside the US, but that is beginning to change. That is partly because of the predictive coding decisions – the Irish Bank Resolution case from Ireland, and the Pyrrho and BCA Trading judgments from England and Wales. There is a growing US interest also in competence when it comes to discovery, and in the incurring of unnecessary costs through failure to cooperate or in the manner of giving discovery.

It is the latter aspect which caught the eye of Patrick Burke of Seyfarth Shaw in an article on his firm’s new and rather good Carpe Datum Law blog. The article is called UK Ministry of Defence Loses Landmark Afghan Veteran Case Due To Sloppy E-Disclosure. He anticipates US interest in Eaglesham’s complaint that:

“[T]he documents were provided in random order, with no explanation as to where they have come from, no explanation of the context in which they were prepared, and no explanation of the acronyms/abbreviations used in them…There has been no attempt by the Defendant to give even a broad range of dates or details of where the undated documents were found or which department they came from.”

Continue reading

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The Sedona Conference International Programme on Cross-Border Discovery and Data Protection – 20-21 June 2017 in Dublin

SedonaOne of the most useful events which I attend every year is The Sedona Conference International Programme on Cross-Border Discovery and Data Protection Laws.

Last year Sedona Working Group 6 met in Berlin, an appropriate setting partly because of Germany’s leadership in EU data protection and partly because of Berlin’s reminders, in memorials all around the city, of the need to protect personal information. I wrote about that in an article after last year’s WG6 meeting called From Himmler to Theresa May to Trump to Microsoft + LinkedIn: why we need data protection.

The year before that the programme was held in Hong Kong in recognition of the growing spread and importance of data protection in the Asia-Pacific region.

The Sedona Conference has just announced that the 2017 Programme will be held in Dublin on 20-21 June 2017. I am just returned from an event in Dublin, where much of the talk was of the implications of the General Data Protection Regulation and of Brexit. Continue reading

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Interview: Kelly Atherton of NightOwl Discovery talks about increasing client interest in analytics for eDiscovery

NightOwlKelly Atherton is Senior Analytics Review Manager at NightOwl Discovery. I interviewed her at Relativity Fest about her work and about the trends which she is seeing. The interview appears below.

Kelly Atherton’s role includes helping to integrate workflows and analytics, advising and training clients, and working with NightOwl’s client services team.

She says that clients are showing ever more interest in the use of analytics – not very long ago, it was hard to get them interested in things like email threading, but that is now normal and clients expect it.

Acceptance of predictive coding has been slower but, increasingly, clients are seeing savings of up to 50% on their reviews and are, in consequence, keen to adopt. Outside counsel are being driven down that route by the clients. Continue reading

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Interview: Ed Spencer of Taylor Wessing on choosing and getting approval for the use of technology

Ed Spencer is the associate at Taylor Wessing who took the initiative in proposing the use of predictive coding in the Pyrrho case. He took part in a panel which I moderated at Relativity Fest in Chicago, and I took the opportunity to interview him.

I have already interviewed him about the Pyrrho case itself and used this interview to follow up a slightly different point – how did he find out about the technology in the first place and how easy was it to persuade others, such as partners and clients, to use it? The focus hitherto has been on his discussions with the other side, but there was presumably a hearts and minds exercise to be conducted first with within the firm and with the client. Continue reading

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One more conference and I can get back to some work

You may have noticed an increase in the number of posts on here recently. That is not entirely to do with the frequency of things to write about (although a couple of UK cases this week were a bonus); it owes as much to the fact that I am coming to the end of the autumn’s events. Two more will have dropped off the calendar after this week and, odds and ends apart, I am done until Legaltech in February and can get on with other things.

There were supposed to be three events this week, with a day trip to Frankfurt on Tuesday to do an eDiscovery Q&A with David Wallack, General Counsel at NightOwl Discovery. That fell foul of a strike by Lufthansa, who cancelled my return flight and offered me one the following morning…. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Ireland, NightOwl Discovery, QuisLex | Leave a comment

Guidance Software webinar on 30 November – 3 Ways To Accelerate Remote Digital Investigations

GuidanceSoftware_200Guidance Software is producing a webinar tomorrow, 30 November, with the title 3 Ways To Accelerate Remote Digital Investigations.

It is based around the capabilities of Guidance Software’s EnCase Endpoint Investigator and deals with the issues which arise when the workforce is increasingly decentralised, working off the organisation’s network.

There is more information and a registration form here.

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Nuix webinar on 1 December: the tipping point of new technology in discovery

NuixNew technology for collaboration, communication and productivity turns up at both ends of the discovery process – not just in the ever more sophisticated tools for managing discovery documents but in the proliferation of new tools, data sources and data types used by businesses and individuals.

All discovery jurisdictions have a definition of a document similar in effect to that in the Civil Procedure Rules of England and Wales – “anything in which information of any description is recorded”. The new apps which people start using today become the sources of discovery data of tomorrow, raising all sorts of practical as well as legal considerations. Continue reading

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Application for early specific disclosure was driven by hope of tactical advantage

For the second time in a week I am obliged to Gordon Exall of the Civil Litigation Brief for a link to a new disclosure case.

The case is GEM Environmental Building Services Ltd v London Borough of Tower Hamlets & Anor [2016] EWHC 3045 (TCC) (28 November 2016). The underlying facts involved procurement, and there is a defined approach to procurement cases in Roche Diagnostics.

The opening paragraph of Coulson J’s judgment begins, unpromisingly for the claimant, by saying “The underlying point of principle is the claimant’s potential misapplication – even abuse – of the approach to early specific disclosure in procurement cases” in Roche. If the judge refers to “abuse” in the first line, it’s barely worth waiting for the conclusion. Continue reading

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Interview: Karyn Harty of McCann FitzGerald on the differing tests for discovery completeness

karynhartyKaryn Harty is the partner at McCann FitzGerald in Dublin who fought successfully for the use of predicting coding in Irish Bank Resolution v Quinn.

She was one of the participants in a panel which I moderated at kCura’s Relativity Fest in Chicago recently. Our purpose at that panel was to compare and contrast the approaches taken in the US, in Ireland and in England and Wales. We looked not just at the use of technology like predictive coding, but also at the rules, the attitudes and the culture which surrounds the decision-making.

In this video, Karyn Harty talks first about the differing tests saying (I think rightly) that Ireland has the toughest test of all civil law jurisdictions as to whether discovery / disclosure is complete or not.

Continue reading

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Eaglesham v The Ministry of Defence – defence struck out for disclosure failures

I am fortunate that both Gordon Exall, in his excellent Civil Litigation Brief, and Professor Dominic Regan (his training website is here), tip me off about cases which are either about disclosure or which (harder to spot) have a disclosure element in them.

I am less lucky in that writing immediately about such things  does not sit easily with the events (and consequent preparation and travel) which always fill the autumn diary. I have only one more week of that to go (hurrah), and can start working my way through the backlog. As an earnest of good intent, here is the judgment in Eaglesham v The Ministry of Defence, published earlier this week.

Gordon Exall has already written about this with his customary zeal and promptness, and has extracted the key paragraphs which matter from a procedural point of view. I will focus on the pure discovery points.

The context is that the defendant ministry had not complied with the terms of an earlier disclosure order and was up against the deadline of an Unless Order under which the defence would be struck out and judgment entered for the claimant if disclosure was not given by 21 October 2016. The application for relief from the sanctions was issued only the day before that deadline.

The judgment is not long and I recommend that you read it for yourselves. The points particularly relevant to disclosure include the following: Continue reading

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Interview: Benjamin Kennedy of NuLegal – Nuix and machine learning in the cloud

NuixWhile I was at ILTA, Angela Bunting, VP eDiscovery at Nuix, introduced me to Benjamin Kennedy of Australian services provider NuLegal. NuLegal have made interesting use of Nuix entirely in the cloud and I asked Benjamin Kennedy to tell me about it.

Most of NuLegal’s work is for eDiscovery and investigations together with electronic trial business. Benjamin Kennedy says that NuLegal has all its infrastructure in the cloud, with no hardware in its offices. It has a large Nuix environment, and among the benefits of the AWS cloud is that NuLegal do not have to worry about how much drive space they have at any one time or whether the machines are running at full capacity. They just expand their AWS use for as long as extra capacity is needed, allowing them to undertake more processes in parallel. Continue reading

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Interview: Dan Wyatt of RPC on cooperation in the Pyrrho predictive coding case

danwyattAt Relativity Fest, I moderated a panel on predictive coding whose members included two of the lawyers on opposite sides in the Pyrrho litigation. The parties to Pyrrho had first debated whether or not to use predictive coding and, then, when that was agreed in principle, how it was to be done.

One of the Pyrrho participants was Dan Wyatt, an associate at RPC in London. After our panel, I asked him how the idea developed that predictive coding was the right technology for this case. The interview is below.

The issue, Dan Wyatt said, was a common one – how to deal with very large volumes of documents in a cost-effective and expedient manner. It was clear from the outset that keywords and manual review would be a “challenging” way to do this” and RPC was receptive when the defendant’s Ed Spencer (I have a separate interview with him coming up) suggested using predictive coding. Continue reading

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Interview: Loren Harper of Simmons & Simmons on the firm’s use of Relativity

relativity2016logoLoren Harper is Head of eDiscovery Solutions at Simmons & Simmons. Simmons was the first law firm outside the US to take Relativity in house and I was interested to hear from Loren Harper about how the firm was using Relativity after eight years of experience. I interviewed her at Relativity Fest – the interview is below.

Loren Harper said that Relativity had become integrated into the practices of the lawyers and those who support them – it is on everyone’s desktop and everyone knows how to use it.

Interestingly, Relativity is used for more than eDiscovery. Loren described how she uses it to run her department. The firm has been using analytics in house for over five years. They did their first predictive coding case in 2013 and the lawyers (and clients) have acquired expertise in working with it. Continue reading

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Beth Patterson of Allens talks about the applications, teams and pricing models which Allens is developing

Beth Patterson is Chief Legal & Technology Services Office at Allens. When I saw her at ILTA in Washington, Allens had just won the Janders Dean Lexis Nexis Innovation Award for its use of technology to support its lawyers and its clients.

The Allen’s solutions are, of course, not just about technology. Beth Patterson talks of the multi-disciplinary team which Allens has created which, amongst other things, uses predictive coding and advanced analytics to prioritise documents for review for litigation cases and investigations.

The benefits, Beth Patterson says, are not limited to time and money saved. Allens is able to offer alternative pricing models such as a fixed price per document and other ways of predicting cost which are in line with modern client expectations. Continue reading

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Interview: Ian Campbell talks about recent developments at iCONECT

XERA_logoweb_225pI wrote recently about the 2016 Vendors Leadership Award presented to iCONECT at the Masters Conference.

Some of the reasons why iCONECT won that award are helpfully recapitulated in an interview which I did with iCONECT CEO Ian Campbell a few weeks earlier and which you will find below.

Ian Campbell talks first about iCONECT’s relationships with Nuix which, he says, is is mutually beneficial to both the companies themselves and to their clients because Nuix and iCONECT live at opposite ends of the EDRM with little overlap. The technical integration encourages mutual recommendations between the two companies. Continue reading

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eDiscovery conference in Dublin on 2 December

On 2 December I will be taking part in eDiscovery 2016, the largest annual gathering in Ireland of those whose work involves some aspect of eDiscovery.

US Magistrate Judge Elizabeth Laporte, always a welcome addition to eDiscovery conferences, will bring us a talk called US developments in eDiscovery.

Ireland is interesting to eDiscovery people for multiple reasons. Irish Bank Resolution v Quinn is, to my eye, the most interesting of the predictive coding cases outside the US. The successful appeal in the Microsoft Dublin case has, for the moment at least, reduced the scope for US courts to demand data held in non-US servers. And Brexit offers great opportunities to Ireland as its consequences encourage UK lawyers, businesses, and those whose business involves data movement, to set up operations there.

The significance of the Irish Bank Resolution case was clear to those who attended the predictive coding panel which I moderated at Relativity Fest. One of the panel members was Karyn Harty of McCann Fitzgerald, who ran the successful arguments in favour of predictive coding in that case. Also on the panel were Ed Spencer of Taylor Wessing and Dan Wyatt of RPC, the protagonists in the UK Pyrrho case. Ed Spencer and Dan Wyatt will be discussing collaboration and the use of technology assisted review with me at one of the Dublin sessions. My interview with Karyn Harty about that case is here. Continue reading

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Interview: Scott Cohen of Winston & Strawn and Angela Bunting of Nuix on the discovery difficulties of dealing with new data types

NuixI wrote recently about a paper called Collaborating in the Cloud: eDiscovery Risks and Opportunities by Angela Bunting, VP eDiscovery at Nuix and Scott Cohen, Director of E-Discovery Support Services at Winston & Strawn. A while back, I interviewed the pair of them about some of the subjects covered in the papers and specifically the challenge of new and varied data types and sources.

We are seeing the continuous arrival of new applications with new file types, new data types, and new methods of collaboration. As Scott Cohen said in this interview, the “Facebook generation” expects to work any time, anywhere and on any device.

Angela Bunting said that Nuix has seen that individuals use, on average, 5.5 applications in their daily lives, and that a corporation may have up to 730 applications which are outside the control of IT. This has an obvious effect on discovery. Continue reading

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UK government confirms it will implement the GDPR

The EU’s General Data Protection Regulation will take effect in May 2018. Some people seem to assume that the UK’s pending departure from the EU, known as Brexit, will mean that the UK need not comply with the terms of the GDPR.

This is nonsense at two levels. One is that the fastest exit from the EU (assuming that we exit at all) cannot happen before May 2018. The UK will still be a member of the EU by the effective date of the GDPR.

The other is that whether we are in or out of the EU, it will be necessary for the UK to comply with the terms of the GDPR, at least to the extent necessary for us to be seen as offering an adequate level of data protection. If the UK does not reach this standard, than it will lose its position as a conduit for transatlantic data-flows, probably to the benefit of Ireland. Continue reading

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Interview with Simon Price of Recommind: the benefits of cloud adoption for eDiscovery

RecommindOpenTexteDiscovery providers are increasingly putting clients’ data in the cloud. I went to see Simon Price, UK Managing Director of Recommind, an OpenText company, to ask him to summarise the benefits of cloud adoption for clients and their lawyers.

Simon Price laid emphasis on the control and oversight which you get when all your projects are consolidated in a single repository which is exclusive to the client. Whether the client manages its own cases or has a managed services agreement with its provider, consolidation allows true business intelligence both about individual cases and about the entire portfolio of cases.

Recommind offers a subscription-based charge so that clients pay a flat amount, getting all the available functionality for a predictable cost. One of the key points emphasised by Simon Price is that there is no longer any cost penalty for using predictive coding and other advanced analytics tools. Continue reading

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Xerox Business Services: Fighting regulators’ data with corporate data analytics

XeroxI wrote in June about Analytics Hub – Analytics-As-A-Service from Xerox Legal Business Services. This is a new service which, as Xerox’s Rachel Teisch put it, allows you to

consolidate masses of data across legal cases and assess up to billions of prior document classifications made by attorneys to identify which documents are relevant for new cases, eliminate repeat reviews, automate the classification of document and identify data that could be a legal liability in the future.

Rachel Teisch’s point was that the use of data analytics can help anticipate a regulatory investigation, mitigate risk and, almost incidentally, improve productivity.

Karl Sobylak of Xerox Business Services has written an article called The SEC has data fever, and the only prescription is more data (analytics) on the (very good) Xerox Discovery Talk blog. The article’s theme is that the SEC and other regulators are increasingly using data analytics to back their investigations into corporate conduct, giving rise to a record year for enforcement actions. The SEC alone “obtained judgments and orders totalling more than $4 billion in disgorgement and penalties”. Continue reading

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ILTA Insight in London on 17 November

iltainsight16_200ILTA is the International Legal Technology Association whose role is to encourage the understanding and take-up of technology solutions in the business of running a law firm or a legal Department. ILTA does this by a mixture of written resources, and events designed to help members share their ideas and experiences with each other as well as to hear from experts.

ILTA has for for many years run a one-day London version of its big US conference called ILTA Insight. It is not an eDiscovery conference – indeed, there is no express reference to eDiscovery at all in this year’s agenda. The agenda is a mixture of specific subjects such as artificial intelligence, data analytics and security, and broader subjects such as legal services delivery, competence, pricing, and budgeting. Continue reading

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iCONECT wins 2016 Vendor Leadership Award at Masters Conference

XERA_logoweb_225pI was not able to attend the 10th Anniversary Masters Conference in Washington this year although, as so often, the accounts coming back from it make me wish I had been there.

Among the events at this year’s Masters Conference was the award of the Patrick Young Vendor Leadership Award. Patrick Young died in 2015 and the award in his memory aims to recognise dedication, customer service and vision in eDiscovery.

iCONECT is the developer of the document review programme iCONECT-XERA. Two things in particular stand out about XERA – its constantly evolving user-friendly interface and the relationships which iCONECT has with those who sell and support its software. Continue reading

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INsig2 LawTech Europe Congress in Brussels on 7-8 November

ltec2016I am looking forward to taking part once again in the INsig2 LawTech Europe Congress on 7-8 November 2016. This event, originally set up in Prague by the engaging Frederick Gyebi-Ababio, is taking place in Brussels for the second year running. The venue, the Management Centre Europe in Rue de l’Aqueduc, worked well last year.

The event’s title is Electronic Evidence, Digital Forensics and Cyber Security, and the broadly-based program, running over two days, reflects that. The speakers come from many countries and occupy contrasting roles in business, professional and technical organisations.

My own panel is on Monday morning and has the title Cooperation and Articulation – seeking judicial approval for TAR and predictive coding. Regular readers of this blog, and those who have heard me speak, will recognise the emphasis on cooperation and articulation. Continue reading

Posted in AccessData, Brussels, Discovery, eDisclosure, eDiscovery, Epiq, Forensic data collections, KCura, LawTech Europe Congress, Predictive Coding, Technology Assisted Review | Tagged , , , , | Leave a comment

Panama Papers and Data Protection at the Nuix User Exchange

NuixThere are people, I know, who can bash out a 1,400 word report about an event in the cab on the way back to the airport, but I am not one of them. I have done four other events since the Nuix User Exchange closed at Huntington Beach a month ago, each with its own preparation and travel, and make no apology for being slow to report on this one. Anyway, it had a value which keeps.

nuix2011At one point during the dinner at the Nuix User Exchange, Nuix CEO Eddie Sheehy asked those who were present at the first User Exchange in Sydney in 2011 to stand up. A handful of us were present at that inaugural event (picture right). Thanks to diary conflicts, I have not been to the Nuix User Exchange since that Sydney event. The bait dangled in front of me this year was too good to refuse, however – moderating an interview with Gerard Ryle, Director of the International Consortium of Investigative Journalists, on the subject of the Panama Papers. Who could turn that down? I will come back to that below.

huntingtonbeachThe Hyatt Regency at Huntington Beach makes a good venue for events like this. With first-rate conference facilities tacked on to an hotel which you would not mind staying in for its own sake, it has beach views, adequate food and half-decent coffee with comfortable spaces to sit and work or chatter. These things matter.

eddiesheehywelcomeEddie Sheehy opened the show in his usual upbeat and welcoming style. Nuix and its staff (there were 60 or 70 of them at the event) have a “passion for data”, he said. Data is vital to drive important subjects like discovery, security and intelligence, investigations, information governance and (a recurring theme always with Nuix) “catching the bad guys”. Continue reading

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FRONTEO managed review roadshow in three US cities

Fronteo_200FRONTEO (formerly known as UBIC, Inc.) is organising a series of client-facing events in US cities focusing on managed review and staffing.

The speakers, who include customers, industry authorities, and FRONTEO experts, will talk about best practices in a range of managed review and staffing subjects including:

· Cross-border workflow
· Cyber security
· Handling of Asian language materials
· Influence of AI in TAR
· Project considerations for staffing vs. contract attorneys
· Leveraging Business Intelligence in review Continue reading

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Interview: Judge Peck on the potential increase in the take-up of technology-assisted review

ILTA at the beginning of September gave me a good opportunity to interview US Magistrate Judge Andrew Peck about the growing use of technology-assisted review in litigation.

Judge Peck had recently given his opinion in the Hyles case to the effect that a party could not be forced to use technology-assisted review against its will; a debate was raging at a deeply technical level in the US about the merits of TAR and the proper way to use it; and I was getting ready for a panel at Relativity Fest at which Judge Peck, along with disputes lawyers from Ireland and England, were due to discuss the different approaches in their respective jurisdictions.

In this interview (below) Judge Peck says that it is clear that there will have to be more use of technology-assisted review in the English-speaking countries because it is well established that it is a much more efficient and cost-effective way of dealing with large volumes than the alleged gold standard of manual review. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation Support, Predictive Coding, Sedona Conference, Technology Assisted Review | Tagged | Leave a comment

Photographs and their metadata help scuttle a shipping insurance claim

gordonexall_200Gordon Exall, author of the authoritative Civil Litigation Brief, is always kind enough to draw my attention to judgments which involve any aspect of eDisclosure. Without his tip-off, I do not think that I would have followed up his recent blog post Proving things 34: there is no primer for scuttlers: when your ship doesn’t come in. The judgment in question, that of Mr Justice Teare in Kairos Shipping Ltd v The Standard Club Europe Ltd, runs to 316 paragraphs, and I don’t think I would have embarked upon it after midnight on a Sunday if Gordon Exall had not tipped me off about the photographic evidence.

I bang on a lot about the evidence (hold on to that word “evidence”) which is created daily by all of us, often without our realising it, through our interactions with social media and other web resources, and in the photographs taken by us or by others. One of my stock examples involves me taking photographs on my iPad of a potential balloon accident. Continue reading

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Angela Bunting of Nuix talks about eDiscovery risks and opportunities from collaborating in the cloud

NuixNewLogo1Angela Bunting is VP, eDiscovery at Nuix. She has just written a paper for Nuix called Collaborating in the Cloud: eDiscovery risks and opportunities. I caught up with her at ILTA and asked about some of the subjects covered by her paper. The video interview is below.

It is not volume alone which is causing eDiscovery difficulties. Companies are finding new ways to communicate and collaborate beyond email and, as Angela Bunting says in her paper, “a recent survey of in-house counsel said their largest challenge next year would be the volume, variety, and veracity of disparate data”.

It is not just organisations who are finding new ways to communicate – individuals do so as well, and if their preferred way of working is easier then the organisation’s way, then they will do it their way. This gives rise to the growing trend of “shadow IT”, the use of applications and media which are not authorised or controlled by the IT department but which handle information which may simultaneously risk-filled and potentially valuable to the organisation. Much is transmitted these days by emojis, not the easiest form of data to interpret. Continue reading

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Lawrie Hall of CYFOR talks about the benefits of online review systems

cyfor-logo-rebrand_200Lawrie Hall is Head of Case Management at CYFOR.

In this video he discusses the benefits of using an online review platform for conducting eDisclosure exercises.

He begins by asking “What if you did not have a review platform?”. It would be necessary, he says, to open each document in turn, review it, annotate it, close it and move on to the next. An online review platform allows you to search the whole body of documents at once and to make bulk changes to records which are of the same kind, perhaps because they are conceptually similar.

Lawrie Hall emphasises that review platforms can be used for documents which exist only as paper and he describes the process by which they can be brought into the review platform. They can be scanned and the text extracted with optical character recognition; significant data like dates, the author and recipient etc can be added so that the paper documents can be searched using the same methods as the electronic ones. Continue reading

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Coming in to land at my desk shortly

Tired after a series of long flights for short events, I recently suggested to my wife that I might not attend one of the big annual US eDiscovery events. “But they’ll all think you’re dead or retired”, she said. She was right, of course, and I duly booked my tickets.

Much the same may occur to people when my blog falls silent for a bit, as it has recently done despite a mass of interesting things to write about. Whatever you may think about that (you might be quite relieved for all I know) I prefer to keep a reasonably regular flow going and to stay more or less on top of the incoming news. September was rather full of other things, and October kicks off in the same style. The end is in sight.

September kicked off with ILTA in Washington (I wrote about that here). We (my son Charlie was with me) came back with a clutch of videos which are going through the editing and approvals process at the moment and will start appearing shortly. Continue reading

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Interview: David Horrigan of kCura on predictive coding, GDPR and other Relativity Fest attractions

relativity-logo-130I caught up with David Horrigan at ILTA. He is eDiscovery Counsel and Legal Content Director at kCura and gets involved in that capacity in planning for the legal practice sessions at Relativity Fest. This interview is about those sessions.

Relativity Fest takes place this year in Chicago between 9 and 11 October. In this interview, we discussed the two panels which I am involved in. One is about predictive coding (or technology-assisted review if you prefer). We have invited Karyn Harty, partner at McCann FitzGerald, who won the arguments about predictive coding in Irish Bank Resolution v Quinn, together along with Ed Spencer of Taylor Wessing and Dan Wyatt of RPC, solicitors on opposite sides in the UK Pyrrho predictive coding case to participate. US Magistrate Judge Andrew Peck adds the US element and I am the moderator. What more could I ask for as a panel? Continue reading

Posted in Cross-border eDiscovery, Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, KCura, Predictive Coding, Relativity, Relativity Fest, Technology Assisted Review | Tagged | Leave a comment

CGOC in London on 4 October: Understanding critical assets in a shifting global economy

cgocCGOC is the Compliance, Governance and Oversight Council, a forum of over 3000 legal, IT, records, and information management professionals from corporations and government agencies.

Last year, I took part in its London meeting and am doing so again at this year’s event on 4 October.

Planned session topics include:

  • GDPR – Compliance and the Impact of Brexit
  • Global IG Challenges in M&A and Divestitures
  • Blockchain – Technology Applications and Regulatory Considerations
  • Developments in Cross Border eDiscovery
  • Best Practices and Quick Wins for IG Program Design

I am taking part in the GDPR / Brexit panel along with Kate Brimsted of Reed Smith, Ed Walker of DT Group and Jonathan Kaley-Isley of Blackrock. Continue reading

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AccessData webinar series: Privacy and security in the age of global investigations

AccessDataAccessData is presenting a series of three webinars under the heading Privacy and security in the age of global investigations.

Two of them are about EU requirements, the first on data security and data protection and the second on EU privacy and data confidentiality requirements. The other is specifically about the growing challenges posed by mobile devices in global investigations.

The subjects to be covered are not only of growing importance in their own right but will become increasingly so as we get closer to the date of the General Data Protection Regulation (GDPR).

You can register for all or any one of these interesting-looking webinars here.

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Interview: Craig Earnshaw of FTI Consulting talks about FTI’s Find Facts Fast approach to eDiscovery

FTI TechnologyThere is a danger of treating discovery as a purely formal process, something done simply in order to meet an obligation. As Craig Earnshaw of FTI Consulting puts it in this interview (video below), the identification of facts often appears as a mere byproduct of that formal process.

Someone clever at FTI Technology came up with the expression Find Facts Fast as a succinct summary of one of FTI’s services to clients. I asked Craig Earnshaw what lay behind this snappy slogan.

Craig Earnshaw explains that Find Facts Fast combines the fast analytical tools in its Ringtail eDiscovery software with a set of methodologies which FTI has created. When these are run by a dedicated team of specialist reviewers, many of them lawyers, it becomes possible to focus the review on the early identification of the key facts in the case. Continue reading

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Guidance Software product video: EnCase Endpoint Investigator Overview

GuidanceSoftware_200The format of media presentations about software products has advanced just as the products themselves move forward from year to year. I am as interested in how companies portray their products as I am in what the products themselves actually do.

Here is a video presentation from Guidance Software giving an overview of Guidance Software’s EnCase Endpoint Investigator.

The first such video I ever saw, as it happens, was from Guidance Software, many years ago. A chap sat at his desk holding up relevant pieces of hardware, plugging in drives and showing what scrolled up his screen. If it sounds primitive now, it was a remarkably effective way of giving life to what would otherwise have been a mundane description in words.

Times have moved on and with them the tools available to describe and illustrate products. This short video (and brevity is a distinct benefit) makes use of technology which combines classroom-type delivery with crisp illustrative tools. Continue reading

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eDisclosure expert Andrew Haslam joins Squire Patton Boggs in the UK

Squire Patton Boggs is a US-led firm with a worldwide presence, with offices in Europe, Asia-Pacific, the Middle East and beyond.

Its global legal practice is well supported by appropriate technology including knowledge management and project management tools. It has a strong focus on the use of technology in disputes and investigations.

My personal link to the firm is through Stephen Goldstein, Director of Practice Support, with whom I have had many conversations over the years about the use of eDiscovery technology in various jurisdictions. As you will see at the end of this post, my connection with the firm goes back a long way.

Squire Patton Boggs has appointed Andrew Haslam as an eDisclosure project manager in its London office. Andrew Haslam is well-known in the UK, with nearly 20 years experience in working with law firms and in writing and speaking about eDisclosure.

Most notably, he was part of the working party that produced the TCC Protocol, he produces an annual Buyer’s Guide to eDisclosure Systems, and he has developed a set of eDisclosure training courses which have attracted praise. Continue reading

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Welcome for a law school eDisclosure course at the QMUL School of Law

The disclosure of documents has always been at the heart of litigation in common law countries. It is not just a procedural requirement with its own strict rules but the source of the evidence and facts on which cases turn. As “documents” have changed from paper to a multiplicity of sources and formats, and as volumes have grown, disclosure has become electronic disclosure or eDisclosure and is often the biggest cause of expense in cases of all sizes.

It requires a set of skills which go beyond those of traditional litigators. All the old skills and knowledge – compliance with rules, strategy and tactics – remain as important as ever, but it is necessary also to understand how technology can be used to comply with the rules and to do so proportionately.

It is surprisingly, therefore, that there is almost no teaching about disclosure in schools of law in the UK or anywhere else save for a small number of initiatives, some very good, at US law schools.

Queen Mary University of London (QMUL) aims to change this with a new academic course in eDisclosure starting this autumn for LLM students at the School of Law. A team of people has been pulled together by Maggi Healey, a former litigator who now specialises in eDisclosure at The Review People, from a range of disciplines: lawyers, eDisclosure consultants and providers make up an ad hoc faculty which aims to cover the many topics which together comprise eDiscovery.  Continue reading

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Sedona Conference programme on cross-border discovery and data protection in Hong Kong on 21 September

SedonaThe Sedona Conference Working Group 6 is concerned with cross-border discovery and data protection laws. Its main annual event is usually held in the US or Europe (this year’s was in Berlin) but last year it took place in Hong Kong. This reflects the growing importance of the Asia-Pacific region for US and world commerce as well as the increasingly prevalent new data protection laws in the region.

This year, The Sedona Conference Institute (TSCI) is holding an event in Hong Kong on 21st September. Called the APAC regional programme on cross-border discovery and data protection laws, it considers the legal implications for information technology and services across APAC as organisations address their information technology and infrastructure needs.

The format brings a faculty of experts and an emphasis on dialogue both among faculty members and with the programme participants who are invited and encouraged to take part in the discussions.

You can find a description of the program, the agenda and relevant materials here. I understand that some would-be registrants may qualify for complimentary entry.

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Consilio acquires EQD to extend geographic coverage and sector expertise

ConsilioIn recent months, global eDiscovery provider Consilio has acquired Huron Legal and Proven, acquisitions which brought Consilio new areas of activity as well as strengthening existing expertise and reach.

Now Consilio has acquired eDiscovery services provider EQD, a Houston-based eDiscovery, document review and litigation support services provider.

At a simple level, the acquisition of EQD expands Consilio’s existing expertise in litigation, investigations and government regulatory requests, with EQD bringing data collection, managed services, document review and other compliance and litigation support teams.

This acquisition, however, is not just more of the same. EQD has strong sector expertise in oil, gas and energy. Its clients, many of them global players, will benefit from Consilio’s security infrastructure and the 24 hour services and support which comes with Consilio’s presence in Europe and Asia as well as in the US. Continue reading

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Billable Hour 2016 – raising money for Save the Children’s work with refugees

The old cliché about a picture telling a thousand words took a very real form last summer with the photograph of a dead Syrian child face-down on a beach. The picture turned the vague concept of a “crisis” into something all too tangible and human, not least for Sean Jones QC of 11 King’s Bench Walk.

Sean immediately launched an appeal called Billable Hour. The idea was to ask lawyers and others to give the equivalent of one hour’s fees or their pay to help Save the Children’s work with refugees. Sean set a target of £7,000. Thanks to his vigour, his charm and his social media skills, as well as the rightness of the cause, he raised 2,736% of this.

Sean Jones launched Billable Hour 2016 on 1 September. As I write, the appeal has raised £31,376, or 448% of the original target, in twelve days. Some are substantial contributions. Some of the accompanying notes stand out – one is made “in memory of the late Dan Hollis QC”, and a judge gives “slightly more than one of my judicial hours”. The ones which touch me most are those representing, for example, a very low legal aid rate or the equivalent from some other area of life which is both vital and badly paid. Continue reading

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Interview: Hal Marcus of Recommind on predictive coding after Pyrrho

RecommindOpenTextHal Marcus is Discovery Attorney and Director of Product Marketing at Recommind (now OpenText). I caught up with him in London in May, after the publication of the judgment in Pyrrho by which the English court approved the use of predictive coding for the first time. We did not know it, but news of the contested application in the BCA Trading case was breaking as we spoke.

Perhaps the main point which Hal Marcus makes in this interview (you will find it below) is that Recommind has been working with UK lawyers since the end of the last decade on the use of advanced analytics. It has, nevertheless, taken all this time until the English court made a decision about it. Continue reading

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ILTA 2016 – pooling proficiency in a plate-glass palace by the Potomac

ILTACon2016

If I lighted on the words “pooling proficiency” in my title mainly for their alliterative quality, they are actually quite a good description of what ILTA (the organisation as well as this big annual event) is for. I nearly didn’t go this year; I am glad I did.

The last ILTA Conference that I did not go to was in Orlando in 2007. That was the year of my first LegalTech in New York and, indeed, the first year in which I set foot in the US. It seemed an extravagance to go twice in one year. This autumn I am going to the US three times in seven weeks which shows how things have changed.

By the time ILTA 2007 opened in Orlando, I had realised my mistake and, sitting at home in Oxford, I wrote an article as if I was there, using Microsoft Maps (Google had yet to achieve supremacy in mapping technology), the hotel website, and the ILTA agenda as my sources (I did of course make it clear that I was not actually there).

I have been to ILTA every year since then, appreciating its reach into subjects beyond eDiscovery, and into companies, firms and cases beyond the biggest ones, to say nothing of the opportunity to meet up with almost everyone I know in US eDiscovery.

I nearly did not go this year, turning down an invitation to take part in a panel on privacy and data protection which came in at a point when I was tired of travel and already committed to other autumn events. ILTA is a habit which is hard to break, however – too valuable to miss for its business, learning and meeting opportunities. It is an attachment which is hard to explain to others. Why would one want to gather with a load of techies in a plate-glass palace by the Potomac when you could be on holiday in Cornwall? I just do, like many others. Rather late in the day, I decided to go after all. Continue reading

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Reviewing the year so far: June – into Europe with Sedona and AccessData

This is my third consecutive post about the eDiscovery events which I have attended so far in 2016 (you can find the earlier ones here and here). The point, to reiterate, is not to suggest that my travels are of interest to anybody but me, but to pick out the themes which seem to matter to people in eDiscovery and its related subjects.

In diary terms, the events thus far in 2016 are, for the most part, the same as in every previous year, with Legaltech, Guidance Software’s Enfuse (formerly CEIC), the Nuix User Exchange, the Relativity Spring Roadshow and London IQPC (now IICE) all taking place at more or less the same time year after year. What changes is the subject-matter, as this series of posts demonstrates.

While there is some pleasure in continuity and in going to much the same venues year after year, it is good occasionally to go somewhere different. Mainland Europe has not hitherto been a fertile ground for eDiscovery. Civil law countries have no history of discovery in the common-law style and consequently little need for discovery skills and technology. It was interesting, therefore, to go to European cities twice in June. Continue reading

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Why would you not use predictive coding in UK litigation? An eloquent argument from Alex Dunstan-Lee of Navigant

Navigant_200We have been filming videos and publishing them in parallel with conventional blog posts for a little over two years now. For some of them I participate as a questioner; for others we simply point a camera at someone with a message and let them talk on a subject which interests them. Both approaches have yielded some crisp, eloquent pieces which bring clarity in a way which is difficult to replicate with the written word.

One of our first videos starred Alex-Dustan-Lee of Navigant whose subject was “Why would you not use predictive coding?”. He was extremely articulate on the subject.

 

My original article about it is here.

One thing has changed since we shot this video. We have seen the approval of the court for the agreed predictive coding terms in Pyrrho and we have seen predictive coding imposed in the face of objections in BCA Trading. It will, however, take more than two judgments, one of them a consent judgment, to persuade every lawyer to at least consider the use of advanced analytic tools, and Alex Dunstan-Lee’s arguments about articulating to the court the merits of your search strategy remain valid.

Alex Dunstan-Lee’s interview remains the best summary I know of the arguments for using technology-assisted review in England and Wales, and I commend it to you despite the passage of time since it was filmed.

Some time later, we did a further interview at Navigant, this time with Katie Jensen, Director, Legal Technology Solutions at Navigant.

 

Katie Jensen’s message is that predictive coding should be used on “just about every project”. She talks about how to give comfort to lawyers as to the efficacy of the search and about helping them to articulate the merits to opponents and the court. Her video is below. The original article about it is here.

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Reviewing the year so far: May: Relativity Roadshow and IICE in London and Enfuse in Las Vegas

This is the second in a short series summarising the events which I have attended so far in 2016. The first is here. The travelogue is just a peg for the real purpose of the series, which is to show the breadth of subjects now related to what was once a single topic, eDiscovery. The paragraphs about subjects are indented.

May. Ah, yes, May. A popular month for events – I sometimes wish organisers would agree to divide the year up and spread the events evenly across them.

It began with the Relativity 2016 Spring Roadshow in London which I wrote about here. I moderated two panels on the recurring themes of the year, one on data protection and the pending GDPR, and one on predictive coding. Another panel was concerned with another recurring theme of 2016, the similarities and differences between the US and UK – one word defined that difference, said Jonathan Maas: proportionality

Then came the largest annual conference in the UK, always known as “IQPC” although you this year rebranded as IICE – Information Management, Investigations, Compliance, eDiscovery. This event, as its lengthy title implies, covers a wide range of the topics related to or touched by electronic discovery, but pure eDiscovery, which used to occupy a least half the programme, was reduced to my single panel. That, once again, was about the use of predictive coding in civil procedure and pursued the increasingly interesting subject of comparisons between the US and the UK. For the US we had US Magistrate Judge David Waxse and Hal Marcus of Recommind (now OpenText); the UK representatives were Ed Spencer of Taylor Wessing and Vince Neicho of Allen & Overy. Continue reading

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Two years since Browning Marean died

Craig Ball reminds us on Facebook that it is two years since Browning Marean died. Although the eDiscovery industry is a fairly friendly place, I suspect that most of us would be forgotten within a month of turning up our toes. Not Browning. Here is Craig Ball’s warm appreciation.

To an Englishman, the highest praise you can give a man is to say that he is or was a “good bloke”. Browning was certainly a good bloke, but he was also an ambassador for his firm, his country and for eDiscovery, a man who imparted more knowledge (and, more importantly, wisdom) than anyone else in eDiscovery, and the man who gave so many (including me) their first leg-up in the industry.

One of my themes at the moment is how the various jurisdictions are beginning to respect each other more when it comes to eDiscovery. Browning did more than anyone to achieve this. Here’s what Craig Ball said on that subject:

Browning Marean was the world’s best known and most admired ambassador for e-discovery, the peripatetic mayor of our global village. No one traveled further, spoke more or put a better face on the American approach to the exchange of information in litigation than Browning. Lawyers around the world think Americans mad when it comes to civil discovery; but when they heard Browning speak, when they heard that mellifluous radio announcer voice, they thought better of us. And that was Browning in a nutshell: a wise, avuncular presence who just made you feel that everything would be all right. He touched my life for good, and I will miss him with all my heart. In that, I am far from alone. Continue reading

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Reviewing the year so far: February to April – New York, Hong Kong and London

August may seem a strange time to review the year, but it is quite a good standpoint for me before the eDiscovery events from February to May recede into a jumble of airports and slide sets, and as I pause for breath before the next round.

It may seem slightly egocentric to pick myself as a glass through which to look at the year and at the subjects which interest the clients, lawyers, judges and providers who make up my audience. I do so because I am to some extent a mirror for others, notably those who are kind enough to sponsor what I do. I speak, write, moderate panels and make videos with them on the subjects which matter to them, and they in turn reflect what their clients want.

When I began, a decade or so ago, my subject was the rules of eDisclosure and case management in England and Wales. That remains important, not least because of its influence on what happens in other jurisdictions. In addition, eDisclosure / eDiscovery skills and technology have spread out into a wider range of topics and across a wider range of jurisdictions. To what extent can one detect themes from the panels I am asked to do?

To save you reading the rest of this article and those which follow it, the chief issues which have arisen at conferences (in no particular order), are data protection and privacy, predictive coding and other forms of TAR, cyber security, and the role of courts in managing eDiscovery / eDisclosure disputes. Other recurring subjects, coming up in my video interviews rather than at events, are managed services and dashboards which give clients an overview of the matters in hand. Continue reading

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FRONTEO sponsors UK launch of ACEDS International Chapter in London on 29 September

ACEDS_200ACEDS is the Association of Certified eDiscovery Specialists, a US-led organisation designed to encourage people to improve and certify their eDiscovery knowledge and skill, advance their careers, broaden their contacts, and increase overall competence in eDiscovery and related fields.

ACEDS’ standing in the industry has been much increased since Mary Mack became executive director, and that profile is to be extended to the UK with the foundation of ACEDS’ first international chapter.

There is information about ACEDS UK chapter here, including a list of its officers. You can join ACEDS from this page.

Fronteo_200The UK chapter will hold a launch party on Thursday 29 September at 18:00 at the Gherkin in London. The event will be sponsored by FRONTEO USA. This is an opportunity for members and prospective members to find out more about ACEDS and its UK chapter, as well as to discuss some of the issues facing UK litigation lawyers and their clients. Continue reading

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Luke Holden of CYFOR explains the importance of digital forensics in civil eDiscovery

CYFOR_200Digital forensics, once used mainly by police and security forces, are increasingly used in civil discovery / disclosure.

As Luke Holden of CYFOR explains in this video, there are two main reasons why it is important to collect data using proper forensic tools and techniques.

One reason is to do with efficiency – data may sit on remote email servers, decommissioned computers or mobile phones and iPads, which may be hard to access both physically and in terms of the skills and tools needed to extract the data. Engaging an expert may actually reduce the overall costs of the exercise.

The other, and perhaps more significant, reason is the need to preserve and capture data in a way which cannot be subsequently challenged. The kind of drag and drop collection which the company might do for itself can alter the dates and times of creation of documents or inadvertently falsify the date on which they were sent. Proper forensic techniques and tools of the kind used by side for removes this possibility.

 

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The Sedona Conference publishes public comment version of TAR Case Law Primer

SedonaThe Sedona Conference has published the public comment version of The Sedona Conference TAR Case Law Primer, a comprehensive review of court decisions addressing the use of technology-assisted review (TAR) and civil discovery.

Although the primary focus is inevitably on US decisions, much of the content will be of application outside the US. Subjects covered include the circumstances in which a court can compel a party to use TAR, where the parties are required to disclose or negotiate their TAR methodology, and the relationship between TAR and traditional methods of document culling and review.

Sedona is encouraging public comment on the Primer as an initial step in developing guidelines for principles for the use of advanced search and review technologies in legal proceedings.

The primer may be downloaded free from the Sedona Conference website here.

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Inaugural meeting of the SCL in Singapore on 14 October

The inaugural meeting of the Society for Computers and Law in Singapore takes place on 14 October. Its title is Negotiation and litigation of technology contracts: some common challenges.

The Chair was known to us as Mr Justice Ramsey of the High Court of England and Wales. He is now the Honourable Justice Vivian Ramsey, International Judge of the Singapore International Commercial Court, one of the examples of judicial talent which has left us in favour of what are presumably more attractive judicial climes. (The DIFC in Dubai is another international court built on England and Wales principles but created from scratch with international commerce in mind and free of the depressingly awful state of the UK courts).

Speakers include Alex Charlton QC and Matthew Lavy, both of 4 Pump Court, the first barristers known to me, many years ago, to seize the opportunities which technology offers to the bar. Continue reading

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The UK ICO: the key themes of the General Data Protection Regulation (GDPR)

It would be essential to take account of the views of the UK Information Commissioner’s Office however well or badly it expressed them.

As it happens, this extremely good document by the ICO sets out the themes and implications of the GDPR with as much clarity as the circumstances permit.

If you detect a hint of doubt there, you are right. The ICO faces the Brexit issue head-on in its introduction.

As a member state of the EU, the UK would be required to comply with the GDPR to the letter – it is a regulation, not a directive. If the UK wishes to keep its place of importance in the global digital economy after an exit from the EU, then it must satisfy the EU that it has acceptable standards for data protection, including new GDPR features like breach notification and data portability. In practice, that means the UK must enact legislation more or less equivalent to the GDPR and satisfy the EU both that it has done so and that it will enforce compliance with it.

The ICO paper says that the ICO “will be speaking to government to explain our view that reform of UK data protection law remains necessary”. That is fine and proper. The issue will be finding someone within government both willing to take an interest and competent to deliver. Continue reading

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Nuix and Consilio seminar on 24 and 25 August: eDiscovery and information governance in Office 365

Nuix-and-Consilio_200Nuix and Consilio join forces on 24 August in San Francisco and on 25 August in Cupertino to lead a half-day seminar on eDiscovery and information governance challenges for Office 365 data.

Those who attend will come away with strategies, best practices, and an understanding of how moving email and other data to the cloud affects eDiscovery and investigation workflow.

The speakers are Reggie Pool of Consilio and Simon Bayangos of Nuix.

As background for these sessions, Consilio has produced an article called Is Office 365 enough to meet your discovery needs? It explains the developments within Office 365 which are designed to aid eDiscovery as well as security and compliance. These include machine learning, predictive coding and text analytics capabilities from Microsoft’s Equivio acquisition, as well as the ability to set policies for the disposition of content in Office 365.

All that goes so far but, the article says, more is needed before corporations can treat Office 365 as a complete eDiscovery solution. The conclusion is that most organisations will need to “fill the gaps with more mature and robust solutions”. That is one of the purposes behind the August sessions with Nuix.

There is more information and a registration form here.

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Jenny Le of FRONTEO talks about the management of predictive coding cases after Pyrrho

Fronteo_200Jennie Le is SVP Global Operations at FRONTEO USA (formerly UBIC). She was in London shortly after the publication of the UK judgment in Pyrrho which gave court blessing to the parties’ agreement to use predictive coding. Since this interview, we have had the contested application in BCA Trading in which the court approved of the use of predictive coding in the face of one party’s opposition.

Jennie Le has had many years of experience in helping US corporations and lawyers as the US began to accept the use of predictive coding. FRONTEO has a new office in London, and I took the opportunity to pick Jenny Le’s brains about the use of analytics in discovery / disclosure. Continue reading

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Interview: Andrew Shimek of Epiq on global eDiscovery and business intelligence

Epiq_logo_200Andrew Shimek is Global Managing Director, eDiscovery Solutions, at Epiq. I interviewed him about the changing expectations of clients in relation to the global presence of those who work for them and their growing need to extract business intelligence from big data. The video interview is below.

Our interview took place before the announcement that Epiq is to be bought by OMERS Private Equity and Harvest Partners, LP and its business joined with that of DTI. That announcement adds point to what Andrew Shimek says about global discovery.

Andrew Shimek emphasises that multinational corporate clients need their eDiscovery providers (as well as lawyers and others) to have a presence in the main jurisdictions in which they do business. There is, he says, “an expectation of consistent service delivery”, and eDiscovery providers need “bricks and mortar” and “boots on the ground” in order to provide that.

In my article about Epiq and DTI, I identified their global presence as the most noteworthy feature of the conjoined businesses. That fits with what Andrew Simek says in this interview. Continue reading

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Dean Gonsowski of kCura talks about helping Relativity users find the functions they need

kCura - RelativityWhen I interviewed Dean Gonsowski, VP, Business Development at kCura I asked him about kCura’s educational initiatives.

Dean Gonsowski said that there is a “consumption gap” between the available tools and what some users are actually doing. There are, for example, an ever-widening range of analytical tools in Relativity which users either do not find or are not comfortable with. Part of the educational mission is to make it easy for users to find the functions they need to get the job done and then help them to make the best use of them.

Dean Gonsowski says that there is a growing willingness by users to experiment on smaller matters or, perhaps, to run analytical tools on closed matters in order to develop skills. Continue reading

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ILTA Conference 2016 coming up

ILTACon2016ILTA is the International Legal Technology Association. Its biggest event, ILTACON 2016, takes place at National Harbour, just outside Washington DC, from 28 August to 1 September.

ILTA is one of the few events which I am happy to attend without participating in a panel. The invitation to participate (in a cross-border / data protection panel called No Safe Harbor: The Latest in European Data Protection Laws moderated by Nigel Murray) came while I was in the middle of the Spring run of events, just at that point when I longed never again to see the inside of an aeroplane. I declined and, while that may be a pity from my point of view now that I have decided to go anyway, it means I can go to ILTA free to spend time listening to other people speak, picking up the gossip, and doing some video interviews with the help of my son Charlie.

The Agenda summary is here with a link to the full Schedule and Session Search. As you can see, it covers a very wide range of subjects both legal and technical. and it is very deliberately aimed at people with many different responsibilities. It is, as I have said every year, the best place for meeting up with those facing the same issues as you – ILTA people are generous with their time and expertise. Continue reading

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Technology-assisted review and cross-border discovery at Relativity Fest

relativity-logo-130There is, of course, much more happening at kCura’s Relativity Fest than technology-assisted review and cross-border discovery, the two things referred to in my heading. That’s just what I am participating in – there are more than 85 sessions in all covering a wide range of subjects including legal/business subjects such as law in practice, IG, risk, compliance and security, and technical things like administration and workflow, IT infrastructure, platform and Relativity Fundamentals.

The technology-assisted review panel which I am moderating in the Law in Practice track is called Technology-Assisted Review: Learn about Da Silva Moore, Quinn, and Pyrrho from participants in the cases. The “participants in the cases” referred to in the title are:

Andrew Peck – U.S. Magistrate Judge, Southern District of New York
Daniel Wyatt – Associate, Reynolds Porter Chamberlain
Edward Spencer – Associate, Taylor Wessing
Karyn Harty – Partner, McCann Fitzgerald

The cases in the session title are respectively the leading US, Irish and UK technology-assisted review cases. The idea for the panel came to me while listening to kCura CEO Andrew Sieja reviewing the year at the London Relativity Roadshow in April. Talking of analytics, he put the names of these three cases on the screen, and it occurred to me that it would be really interesting to gather the participants in each of them and hear what they had to say. Continue reading

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Panama Papers and cross-border data flows at the Nuix User Exchange

NuixEveryone has their own reasons for going to the Nuix User Exchange – there is something for everyone on the Agenda, whether they are engaged in eDiscovery, law enforcement, forensics or security and whether as corporate client, lawyer, hands-on user, developer, or project manager.

My own primary purpose is to moderate the keynote on Tuesday. The session is called Behind the scenes – the Panama Papers, and the speaker is Gerard Ryall, director of the International Consortium of Investigative Journalists. It was the ICIJ who, using Nuix, broke the Panama papers story after extensive research. I wrote about this in an article called Nuix provides the power behind the humans investigating the Panama Papers leaks  and I am very much looking forward to the opportunity of asking Gerard Ryall about it. Continue reading

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Judge Peck declines to order a party to use TAR. What would an English judge have done?

US Magistrate Judge Andrew Peck has just declined to order an unwilling party to use technology-assisted review in a case called Hyles v New York City. I think that an English court would have made the order in analogous circumstances. I am due to moderate a panel at kCura’s Relativity Fest in October at which English, Irish and US experts will talk about what we can learn from each other on this subject. Judge Peck’s opinion forces a focus on cooperation and the role of the court which are to be our lead topics at our panel. It also draws attention to the role of guides and principles developed outside the rules.

Note for purists: I am well aware that the “UK court” is properly called the High Court of England and Wales. I have a foreign readership to consider with 2,000 words to get through, and I opt for comprehensible brevity over strict accuracy.

US Magistrate Judge Andrew Peck is the leading judicial proponent of the use of Technology Assisted Review. His opinions, notably those in Da Silva Moore and Rio Tinto v Vale, are cited in pretty well every judicial opinion and judgment, and in every academic textbook or paper in the common law world.

On 1 August, Judge Peck declined to order the City of New York to use TAR in a case brought against the city by Pauline Hyles. The Order (you will find it here) ends thus:

The Court would have liked the City to use TAR in this case. But the Court cannot, and will not, force the City to do so. There may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR. We are not there yet. Thus, despite what the Court might want a responding party to do, Sedona Principle 6 controls. Hyles’ application to force the City to use TAR is DENIED. Continue reading

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Epiq to be acquired and to be combined with DTI to make a big global player

Epiq_logo_200We are unlikely to see bigger eDiscovery market news in 2016. Epiq Systems has reached agreement to be acquired by OMERS Private Equity and Harvest Partners, LP in a transaction valued at approximately $1 billion. The acquirers are majority shareholders in DTI, and Epiq and DTI will be combined to create an extremely large global legal services and technology provider.

Epiq’s announcement is here. The news was initially misreported – some reports said that DTI had acquired Epiq. The story was also reported in some quarters as being a pure eDiscovery story when in fact both Epiq and DTI have wider interests. Epiq began with the management of bankruptcy and that remains a significant component of its business, along with class-action and mass tort administration, Federal regulatory actions, and data breach responses. DTI is a Legal Process Outsourcing (LPO) company which manages eDiscovery along with other aspects of complex litigation and compliance. Continue reading

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Interview: Michael Jeffrey Glick of FRONTEO talks about the use of managed services in eDiscovery

Fronteo_200Michael Jeffrey Glick is Senior Vice President – Managed Services at FRONTEO USA, formerly UBIC North America. I interviewed him when he was in London recently and asked him what is meant by the term “managed services”.

A very wide range of eDiscovery tools is now available, he says, and it is very expensive to own it all. Its use involves considerable human support as well. Managed services brings together the entire suite of technology and support services which lawyers need.

It is important to lawyers and their clients to control not only the cases individually but the overall case-load. The use of managed services is an “overarching business decision on an annualised basis”.

The control of costs is as important as the control of the caseload. Michael says that the FRONTEO managed services offering gives lawyers a great deal of control while relieving them of the management of technology and people. It is important to realise, he says, that having technology and support services on this basis means that it can be used for smaller matters such as subpoenas and investigating employee complaints as well as for the very big cases. Continue reading

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A disputed predictive coding case from the UK – BCA Trading

RecommindOpenTextWe were a long time waiting for the publication of the judgment in Brown v BCA Trading and others, the first occasion, publicly at least, where the use of predictive coding was ordered by the court in the face of opposition. Ireland has had the disputed case of Irish Bank Resolution v Quinn, and England and Wales has the agreed use of predictive coding in the UK Pyrrho case. Now we have an England and Wales case in which the use of predictive coding was unsuccessfully contested.

The judgment was published just as I set off abroad to talk about the other hot topic of 2016, the General Data Protection Regulation and other aspects of privacy and data protection. I am spared having to analyse BCA Trading from scratch because Adam Kuhn of Recommind (now OpenText) has already written a useful summary which you will find here. Continue reading

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Discovery of video and audio: Ian Campbell demonstrates with iCONECT-XERA

XERA_logoweb_225pVideo turns up twice in this short story, once as the subject of an interview and once as the medium by which the interview is given.

Let’s take the presentation medium first. What we have here is Bill Hamilton of the University of Florida eDiscovery Project talking to Ian Campbell, President and CEO of eDiscovery review company iCONECT.

 

 

The interview is apparently conducted over Skype or something similar so you can see both of the participants. It includes a short desktop demonstration of relevant iCONECT-XERA functions by Ian Campbell.

Full marks from me for the low-cost way of distributing helpful information to a wide audience. Continue reading

Posted in Audio discovery, Discovery, eDisclosure, eDiscovery, Electronic disclosure, iCONECT | Tagged , | Leave a comment

QuisLex opens large-scale review centre in New York

QuisLexQuisLex is a legal services provider offering managed document review, contract and compliance management, legal spend management, and legal operations consulting services.

Its largest operations centre is in Hyderabad where its core operational teams include a quality management team, a development group and a legal technology group.

Since 2011 it has also had an Execution Centre in Chicago. Now it has opened a large-scale US-based Execution Centre at Liberty Street in the financial district of New York City.

The new centre can accommodate 200 full-time and project-based employees. It is designed as an efficient location for maximising efficiency and productivity in a secure environment while consciously creating a place where people will like working – an important factor when people are expected to perform detailed tasks under pressure. Continue reading

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

AccessData webinar on 3 August: Law firm best practices for simplifying eDiscovery

AccessDataOn Wednesday 3 August at 2.00pm ET, AccessData joins forces with Oklahoma law firm Crowe & Dunlevy to present a webinar called Law firm best practices for simplifying eDiscovery.

Crowe & Dunlevy has recently implemented AccessData’s eDiscovery product Summation to simplify their eDiscovery workflow, to reduce the need to transfer data between platforms, and to reduce costs.

Charlotte Blacklee, litigation support manager at Crowe & Donlevy will explain why her firm chose Summation and how Summation is used for efficient eDiscovery at Crowe & Donlevy.

There is more information and a registration page here.

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

Recommind is now OpenText

RecommindOpenTextAn article by Mark Barrenechea, CEO and CTO of OpenText, with the heading OpenText Expands eDiscovery, Content Analytics, and Cloud with Recommind Acquisition marks the completion of OpenText’s acquisition of Recommind.

OpenText is already a leading provider of Enterprise Information Management (EIM) solutions, and Recommind’s software and  expertise in content analytics and the cloud supplements OpenText’s ability to help its clients manage the flow of organisational information.

As one would expect from Recommind’s strong position in eDiscovery, Mark Barrenechea makes much of the opportunity which OpenText has to grow in the eDiscovery market. Continue reading

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

Karyn Harty of McCann FitzGerald: eDiscovery in Ireland and the Irish Bank Resolution case

Karyn Harty is the Partner at McCann FitzGerald in Dublin who won the predictive coding argument in Irish Bank Resolution v Quinn. I interviewed her recently about that case and about the wider subject of eDiscovery in Ireland.

Taking the latter first, Karyn Harty observes that the Irish discovery rules are closer to those of the US than they are to the UK, with a stricter test being applied for deciding whether a document is discoverable or not.

Discovery, Karyn Harty says, is a common battleground in Ireland, making it more than usually necessary to be transparent about your intentions in anticipation of an attack on your discovery.

It is easier, she says, to have a strong opponent who understands the technology and she is involved in initiatives to raise the level of understanding of lawyers and judges so that more people are capable of dealing with the arguments. Continue reading

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