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

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

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


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

Posted in AccessData, Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, EU, EU Safe Harbor, GDPR, Sedona Conference | Tagged | Leave a comment

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

Posted in Cross-border eDiscovery, Cyber security, Data privacy, Data Protection, Data Security, Discovery, eDiscovery, Guidance Software | Leave a comment

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

Posted in Cross-border eDiscovery, Cyber security, Data privacy, Data Protection, Data Security, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Nuix | Leave a comment

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

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

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

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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

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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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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

Q&A: Reasons for using Viewpoint from Xerox Legal Business Services

XeroxLDM Global’s Joey Friedmann discusses how Xerox’s Viewpoint eDisclosure platform helps clients achieve greater efficiencies in eDisclosure projects.

Viewpoint is an eDiscovery platform of Xerox Legal Business Services. It is available as a hosted platform or used behind the client’s firewall, deployed as a “backpack” solution where data must remain in situ. Xerox Legal Business Services has had considerable success with Viewpoint in the US, the UK and for projects in the Asia Pacific region, where on-site deployment is often a requirement.

Viewpoint is available in the UK through LDM Global, an eDisclosure service provider and Viewpoint partner.

I have been speaking to Rachel Teisch, Vice President of Marketing at Xerox, to learn more about Viewpoint and, in particular to better understand Xerox’s parallel development of Viewpoint and its Relativity offerings. I asked to speak to a Viewpoint partner and Rachel Teisch referred me to Joey Friedmann, the Director of Project Management at LDM Global. I recently talked with him about LDM Global’s use of Viewpoint and how it adds value to client projects, with particular reference to budget-conscious London. This post combines my discussions with both Joey Friedmann and Rachel Teisch. Continue reading

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The Microsoft Warrant appeal decision and US exceptionalism in a changing world

A kind person sent me the appeal decision in Microsoft v United States before the metaphorical ink was dry. Usually I could drop everything and deal with it, but its arrival coincided with one of those rare blog posts which had to be published that day, which had in turn been interrupted by an urgent request for something techy by someone entitled to make urgent requests. Accordingly, some useful and interesting articles had already been published about the decision before I had the chance to read its dense 63 pages. The last 20 pages, by Judge Gerard E Lynch, are, in some ways, the most interesting part – not a dissent from the conclusion but a slightly different route to it.

When I say that the decision is “dense” I mean it in the most complimentary way. Its analysis of the facts and the law makes almost every paragraph quotable, so I suggest that you read it for yourself. Perhaps find a quiet room and some strong coffee first, because the principles covered in the decision are complex – it is, of course, the nature of appeals to this level that they are concerned with complex things.

At one level, what matters most is its conclusion which reads as follows:

We conclude that Congress did not intend the SCA’s [the Stored Communications Act] warrant provisions to apply extraterritorially. The focus of those provisions is protection of a user’s privacy interests. Accordingly, the SCA does not authorize a U.S. court to issue and enforce an SCA warrant against a United States‐based service provider for the contents of a customer’s electronic communications stored on servers located outside the United States. The SCA warrant in this case may not lawfully be used to compel Microsoft to produce to the government the contents of a customer’s e‐mail account stored exclusively in Ireland. Because Microsoft has otherwise complied with the Warrant, it has no remaining lawful obligation to produce materials to the government.

The emphasis is mine. They are the words which make this seem, to some, a victory for privacy against government, and they represent the difference of opinion between Judge Lynch and the others. Continue reading

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iCONECT secures multi-million dollar funding to support development of iCONECT-XERA and other initiatives

XERA_logoweb_225pThe big eDiscovery business news of the week has been the multi-million dollar funding agreement announced by iCONECT. The agreement was reached with Fraser Mackenzie Merchant Capital who emphasised their faith both in the potential of iCONECT and in the strength of the management team led by Ian Campbell.

I have noted recently that barely a month has gone by this year without some new announcement from iCONECT. The company’s evident good health is part of my own assessment that the eDiscovery market generally is expanding whatever may be happening in the wider economic world – indeed, the turmoil in the wider markets, as well as the growing emphasis on privacy and data protection, benefits those within the eDiscovery industry who have the right products and the zeal to capitalise on them. Continue reading

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Epiq talk on 15 July to Hong Kong Academy of Law about handling digital data

Epiq_logo_200I have only just seen this the notice about a talk to be given tomorrow, 15 July, to the Hong Kong Academy of Law by Epiq about handling digital data with secure and forensically sound practices.

The Hong Kong Academy of Law provides practical legal information across a wide range of topics for lawyers. I took part in one of its lectures a few years ago on eDiscovery rules and practices.

This week’s course will introduce practitioners to common challenges and solutions in handling data securely and in a forensically sound way. The course will cover the following points: Continue reading

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Disclosing native files by default – proportionate common sense in any jurisdiction

From time to time, I mock the curious assertion that “US discovery is two years ahead of the UK and the rest of the world”. I did it most recently in my article about Legaltech Hong Kong where I referred to “the slightly patronising impression that the US is sending missionaries to a backward world”. I always take care to emphasise that we are very dependent on the very fine technology which emerges from the fire of the Federal Rules of Civil Procedure, and for some of the very good thinking which emerges from the US, not least from a handful of its judges.

Nevertheless, most of US eDiscovery, both as it appears from its rules and as it is practised, leaves us gaping with astonishment at a regime which seems almost designed to pour costs down the drain. The battles over Requests (why not just get on with giving discovery?); privilege logs (no comment); the default assumption that your opponent is a twister who will take every opportunity to do you down (some do, but how much money is spent in assuming that everybody will?); the elaborate games of motion practice which seems so remote from the task of resolving the dispute (we have a few like that, but our gavel-less judges are quite good at stamping on them). None of this is meant to suggest that we in England and Wales are better overall, but they certainly give the lie to the idea that the US is in any sense ahead of us. Continue reading

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Consilio paper: How technology can support data protection compliance

Today, the European Commission launched the EU–US Privacy Shield with the headline “Stronger protection for transatlantic data flows”. The European Commission press release is here and the reciprocal Remarks by the US Secretary of Commerce are here.

ConsilioThis seems a good time to look at a recent paper by Michael Becker, managing director at Consilio, called Finding a new Safe Harbour: how technology can support data protection compliance.

As its title implies, the paper was written in the period between the invalidation of Safe Harbour by the Schrems decision and today’s (apparent) finalisation of its successor, the Privacy Shield.

I was among those who felt strongly that Safe Harbour was never adequate, on its own, as a means of complying with EU data protection requirements – if mere self-certification to Safe Harbour was the only step you took to meet EU regulations, then you were doing it wrong anyway. Continue reading

Posted in Consilio, Cross-border eDiscovery, Data privacy, Data Protection, Discovery, eDiscovery, EU Safe Harbor | Tagged | Leave a comment

The UK summer of 2016 explained for foreigners…oh, hold on, there’s news coming in..

I started this morning to write something about the UK for the benefit of those outside it who might be a bit confused with the multiple strands of chaos and confusion running in the few days since the Brexit referendum. I got this far as my introduction…

Much of my job involves explaining the eDiscovery systems of one jurisdiction to another. That extends, occasionally, to trying to explain wider UK matters, chiefly to Americans. Where does one begin with the summer of 2016 as it stands at the moment?

David Cameron, still Prime Minister, was booed at Wimbledon on Sunday. Someone rightly observed that the UK looked inglorious enough to the world without people booing their own Prime Minister.

Andrea Leadsom, one of two candidates to replace him, has a CV which might charitably be called “imaginative” at best and, having used her own fertility to deride her childless opponent Theresa May, first denied having done so, and then apologised, after a fashion, only when the tapes showed that she had. Continue reading

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Fronteo and Nuix partnership brings Nuix processing power to Fronteo products

Fronteo_200I wrote recently about UBIC’s rebranding as Fronteo. Fronteo has got off to a good start with a strategic discovery partnership with Nuix.

The agreement allows Fronteo to bring the speed and processing power of Nuix to the ever-growing volumes of data which Fronteo, like all eDiscovery providers, is expected to process, and to process quickly.

NuixIn addition to its speed and scalability, Nuix brings compatibility with the multilanguage support in Fronteo products. Fronteo’s North American growth has not detracted from its strong origins in the Asia-Pacific region, and the ability to handle Chinese, Japanese and Korean (CKJ) character sets was a deciding factor in the selection of Nuix.

There is a press release from about this from Fronteo here and from Nuix here.


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iCONECT brings out XERA-CONECT to keep you on top of eDiscovery projects on the move

XERA_logoweb_225pI was sitting at dinner recently next to the wife of a US Federal Judge in the restaurant at the top of a Park Lane hotel. We were watching the passenger jets queueing for Heathrow and she had probably marked me down as some kind of geek for she said “You probably have an app which tells you what they are”.

As it happens, she was right, and I showed her a display of every flight in range and some pretty comprehensive details of the next plane which passed.

In similar vein, I have just been given a Fitbit. Today is its first full day and it tells me that I was asleep this morning from 10:21am to 11:45am. I am not particularly embarrassed about that since we set an alarm for 3:30am so that I could get my wife on her way for an early flight. I started work at 4.30am so my mid-morning kip nearly brings me up (so the Fitbit app tells me) to my target of 5 hours sleep. The app is not just giving me information but telling how I am doing against a target.

The point of both these anecdotes is that we have become accustomed to getting all sorts of information from our phones. Neither of these apps was accompanied by a manual or a training course. They downloaded in seconds and needed little setting up. Like most people, I have many of them, each touching on some different aspect of work or play. It has become the norm, the standard we expect from software tools. Continue reading

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FTI webinar on 12 July: Smarter investigations in the App Age

FTI TechnologyAs individuals, we all use our phones and tablets to create ever greater volumes of data in an ever widening range of formats. Every app brings new opportunities to create and store data and to communicate with others, and it is hard to keep track of all the data we create and own.

If this is difficult for us as individuals, it is very much more difficult for organisations. As they become more mobile and more collaborative through the interactions of their staff, so the implications become more complicated for investigations, for regulatory compliance and for eDiscovery.

It is necessary to put some method around the collection and safe-keeping of all this data. FTI Technology has a webinar on 12 July  called Smarter investigations in the App Age which will explain how: Continue reading

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eDiscovery Business Confidence survey: onward and upward?


I wrote this article before setting off on my recent trip to Amsterdam and Frankfurt. By the time I returned, the UK had voted to leave the EU – something which, like most people, I had not expected.

I have since written separately about the likely effect of Brexit (if it happens) on the global eDiscovery market, concluding that, if eDiscovery is affected at all, it will be in a positive way. I have therefore left this (optimistic) article as it stands.

How do you measure business confidence? Sometimes the answer appears to lie in projections by the likes of Gartner, although analysts have an interest in focusing on the sunny uplands allegedly ahead; sometimes it lies in the responses to surveys, though these, for me, depend on black-and-white questions in what is usually a grey world. I prefer the whites-of-their-eyes anecdote, the subliminal collation of feeling which comes from talking to a lot of people and drawing conclusions not just from what they say but from how they say it.

Anecdotal observation can be powerful. Like others who have been around that long, I remember the Legaltech of 2009, of conversations in a grey snowy New York of layoffs, deferred decisions and cash-flow problems. The event turned into a giant job market, with sad-looking people pressing CVs on companies who had problems enough of their own. I still have a photograph of a Supersession notice; a scribbled note records that “This session has been cancelled. We apologise”. The company had gone down that morning. We needed no surveys to tell us that times were hard. Continue reading

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Interview: Ed Spencer of Taylor Wessing on Pyrrho and predictive coding

In this video interview, I talk with Edward Spencer, the associate at Taylor Wessing who had the conduct of the eDiscovery application in Pyrrho Investments v MWB Property which resulted in the UK’s first court approval for the ue of predictive coding. It was Ed Spencer who produced the witness statement explaining the proposed use of predictive coding which was referred to in complimentary terms by the judge.

The Pyrrho judgment gave judicial approval to something which had been agreed between the parties. As Ed Spencer makes clear in this interview, the path to that agreement was not straightforward with, as he puts it, the usual “angry letters” being exchanged before the lawyers and their technical experts “got in a room” to discuss their respective positions. Most disputes are capable of resolution, Ed Spencer says, once you get into a dialogue which narrows the issues and, if necessary, sets out residual points of dispute for the court. Continue reading

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Karyn Harty talks about McCann FitzGerald’s Data Investigations Group

Karyn Harty is a partner at Dublin law firm McCann FitzGerald. It was Karyn who ran the arguments for the use of predictive coding which were successful in the Irish Bank Resolution v Quinn case and I interviewed her about that recently.

While doing that, I caught a reference to her firm’s Data Investigations Group which sounded sufficiently interesting to follow up in a separate interview. The resulting video is below.

Karyn Harty said that the Data Investigations Group was the result of a strategic plan, running across all departments, to consolidate on, and improve the quality of, all client-related data exercises. Continue reading

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eBook from AccessData to help CIOs and CISOs plan to meet changing demands

AccessDataAccessData has published a guide to help corporate information technology executives with the strategic technology planning needed for legal, compliance, human resources and investigative teams across the organisation.

The eBook is called CIO and CISO Guide to Digital Discovery Technology Planning. Mike Stevens, Chief Technology Officer of AccessData said “We wanted it to be a practical guide for busy leaders, so we also include checklists of recommended questions to consider when deciding what technology solutions to purchase.”

The five key sections in the e-book are: Continue reading

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Update on Xerox business names after separation into two companies

XeroxIn January 2016, Xerox announced that it planned to separate into two independent public companies by the end of 2016.

Xerox has now announced that the new Business Processing Outsourcing (BPO) company will be called Conduent, Inc. while the Document Technology company , focusing on document management and document outsourcing, will continue to be called Xerox Corporation.

There is more information here and a press statement about this here, with links to various resources including formal presentations, video and audio commentaries and a detailed fact sheet.


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FTI recorded webinar: predictive coding – the future of document review

FTI TechnologyFTI Consulting recently broadcast a webinar in conjunction with The Lawyer with the title Predictive coding – the future of document review? Its focus was the use of predictive coding technology in the UK, spurred by the judicial approval given in the Pyrrho case.

Since then, we have had a contested application in BCA Trading in which predictive coding was ordered in the face of opposition. Between them, these two cases make it quite clear that UK litigation lawyers need to know about this subject.

The panel comprised Jon Fowler, Senior Director and predictive coding expert at FTI Consulting, Giulia Da Re, Senior Litigation Lawyer at Lloyds Banking Group and Mark Chesher, Legal Director at Addleshaw Goddard.

Jon Fowler helpfully began by explaining what predictive coding is and how its use differs from traditional linear review. Predictive coding has long been used by lawyers, he says, for prioritisation and for quality control and, as a result, they have become more comfortable in its use. Continue reading

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404 error on my Rebelmouse links

The links which appear below the logos on this blog are derived from my Rebelmouse page at Rebelmouse is quite good as a running note of sites of interest, though just a little too fiddly for me to keep it constantly updated – that is why my additions are sporadic rather than constant.

I would love to find a replacement, but the big plus of Rebelmouse is the ability to link to it and automatically keep updated links down the side of the blog.

Or that is what it should do. A reader has pointed out that the links when taken from the blog now lead to 404 errors. We will investigate this and hope to fix it shortly. If not, we will try and find a replacement for this useful function.


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Relativity Fest 2016 early bird registration includes the cost of a Relativity exam

RelativityFestThe early bird registration rate of $950 for Relativity Fest remains open until 30 June.

That price includes the cost of one Relativity exam as well as access to the many technical, legal and practical sessions. On top of that, there is the opportunity to mix with others facing the same challenges.

Oh, and the parties; kCura is good at parties.

Registration details are here.


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Consilio Law Department Benchmarking Performance Series – closes 15 July

ConsilioConsilio and The General Counsel Forum have launched the 2016 Law Department Benchmarking Performance Series with their Survey No 1: Foundational Metrics.

The aim is to and gain insight into metrics and trends driving law department operations with metrics such as:

  •  Total, internal and external legal spending as a percent of revenue
  • Lawyers per billion in revenue and by geographic distribution
  • Paralegals and administrative assistant per lawyer
  • Budget allocation for technology projects and personnel
  • Anticipated changes in spending

Participants will get access to industry benchmarks and peer comparisons.

The survey closes on 15 July. You can find it, and further information, here.



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eDiscovery opportunities in the Brexit difficulty

“A pessimist sees the difficulty in every opportunity; an optimist sees the opportunity in every difficulty”. Winston Churchill

I spent last week doing a mini-tour of European cities, organised (and excellently) by AccessData. The theme was the collision between data transfer requirements and data privacy restrictions, and the cities were London, Amsterdam and Frankfurt. I was the moderator and US Magistrate Judge Andrew Peck was a panel member at all three events, supplemented in each city by local experts in different aspects of our subject.

I will write about that separately. My theme here is the Brexit storm which broke upon us while we were in Frankfurt – a city likely to benefit from the dishonesty and uninformed ignorance which led to the UK’s Brexit referendum.

I am no good at writing on the move, and spent the weekend before we left writing enough articles to be able to publish one per day. Even that relatively light task proved inconsistent with the other requirements of the trip and I actually published none of them; at least I now have a stock of things to publish this week – just as well, given the Brexit distractions.

In between sessions there was the opportunity to see something of the host cities.


London on the longest day, unconscious of what was about to come 


An Amsterdam canal – the calm before the Brexit storm

We awoke on Friday morning in Frankfurt to discover that the UK had apparently voted itself out of the EU. Sitting in the airport lounge at Frankfurt, we could not distinctly hear Boris Johnson and Michael Gove at their press conference on Friday morning, but it was clear from their demeanour that the outcome for which they had campaigned was not one for which they had prepared. They looked like Leo Bloom and Max Bialystock in The Producers at the moment when they discovered to their dismay that Springtime for Hitler was an unexpected hit. Continue reading

Posted in AccessData, Cross-border eDiscovery, Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure | Leave a comment

Sebastian Ko of Epiq in Hong Kong talks about conducting eDiscovery in the Asia Pacific region

Epiq_logo_200Sebastian Ko is Director, Document Review Services, for Epiq, based in Hong Kong. I had the opportunity to interview him when I was in Hong Kong earlier this year and I asked him about how Epiq handles the issues which can arise in the region.

Epic does eDiscovery exercises, from collection through to review, not just in Hong Kong but in mainland China and in South East Asia, including Singapore. The principal problem, Sebastian Ko said, is integrating all the disparate data components which are to be found there so that they can “tell a good story”.

A major issue in the region, particularly in China, is dealing with data protection rules and guidelines which, Sebastian Ko says, are both broad and vague. Epiq has developed workflows to deal with with overlapping regulatory frameworks and set up on-site hosting and review facilities. Continue reading

Posted in China, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Epiq, Hong Kong, Singapore | Tagged | Leave a comment

Interview with Eddie Sheehy as he celebrates 10 years as CEO at Nuix

NuixNewLogo1Eddie Sheehy, CEO of Nuix, has been with the company for ten years. To mark the occasion, the Nuix marketing department asked him ten questions about his time with a company which has seen remarkable growth in a very short time.

In the resulting video, Eddie Sheehy talks about his early aspirations for the company and about how they have been exceeded. We hear of the letter from the SEC which gave such enormous credibility to Nuix, and about Eddie’s favourite customer win, alongside stories of early struggles, his hardest moment, and the difficulties of combining an exhausting travel schedule with bringing up children. There is praise for the staff, not least the development team and for stalwarts like CTO Stephen Stewart and North America CEO Jim Kent. Continue reading

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Relativity webinar on 20 June: Mid-year briefing: 2016 data discovery case law

kCura - RelativitykCura is presenting a webinar on 20 June at 1:00pm ET whose purpose is to review data discovery case law at the half year point.

Judicial decisions continue to shape the practice of law. 2015 brought the US yet further judicial acceptance of technology-assisted review, refined definitions of “practising law”, and growing recognition of the importance of mobile data in litigation. What is 2016 bringing us?

David Horrigan, eDiscovery counsel and legal content director at kCura will discuss this with US District Court Judge Nora Barry Fischer in this webinar.

There is more information and a registration page here.


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From Himmler to Theresa May to Trump to Microsoft + LinkedIn: why we need data protection

The condemnation in Godwin’s Law, the “Reductio ad Hitlerum”, does not apply to an article which legitimately begins with a record of Nazi atrocities in Berlin. The implied comparison between Heinrich Himmler and Chris Grayling is justified by their parallel rises from obscure nobodies (chicken farmer in one case, media management in the other) to positions where they had / might have their hands round the throat of human rights.

A few yards behind the Brandenburg Gate in Berlin stands a row of glass screens recording, in English and German, the fate of gypsies, Jews and others at the hands of Himmler’s Research Office for Racial Hygiene.


When you hear Americans complain about how EU data protection laws stand in the way of honest lawyers trying to collect documents for US litigation, take them to this place and show them why we in Europe are so concerned about records of personally identifiable information. Efficient record-keeping allowed easy targeting of those whose race, religion, politics and other personal characteristics classified them as different in a regime where difference became a crime.

This kind of record-keeping did not end with the annihilation of the Third Reich. In post-war East Germany, neighbour spied on neighbour, recording and reporting every conversation and every move to the Stasi, who collected it all in vast repositories and used it for discipline and control. The discovery needs of US courts and regulators suddenly seem very insignificant.

The memorials all around Berlin made it an appropriate venue for the Eighth Annual Sedona Conference International Programme on Cross-Border Discovery and Data Protection Laws. I was there last week, and sat down yesterday to write about it. What began as a diversion into the context – the reasons why data protection matters – has become an article of its own, and I will write separately about Sedona WG6. Continue reading

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Six enhancements to iCONECT-XERA in 2016

XERA_logoweb_225pBarely a month goes by without news of some enhancement to iCONECT’s discovery review product iCONECT-XERA. This year they have included new functions, new relationships, and a new iCONECT Healthcare division.

I have caught most of these as they emerged but iCONECT has now helpfully assembled them in one infographic and a press release. Continue reading

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Epiq takes Relativity to China

Epiq_logo_200Epiq has enhanced its status as a global provider of legal technology solutions and services by making kCura’s Relativity available in the People’s Republic of China. Epiq is a Relativity Orange Level, Best in Service hosting partner and has data centres in Shanghai, Hong Kong and Tokyo as well as in the US, UK and Germany.

Bob Hopen, Senior Vice President and General Manager, International Markets for Epiq said:

“With litigation and regulatory investigations becoming increasingly complex and involving multiple jurisdictions, it is important for legal teams to be able to process and review information on a global scale. Adding Relativity to Epiq’s solutions in China will further allow us to meet the growing needs of our clients who do business there.” Continue reading

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Analytics Hub: Analytics-as-a-Service from Xerox Legal Business Services

XeroxAnalytics Hub is a new service from Xerox Legal Business Services. Most people engaged in large eDiscovery exercises are used to calling on analytical tools built into their eDiscovery applications to help them extract useful information from large volumes of documents in their current case. The Xerox Analytics Hub brings similar power across all prior and current cases.

Furthermore, making analytics available in this way brings analytical power to pre-emptive risk management separate from (and perhaps in anticipation of) reactive eDiscovery exercises, perhaps heading them off entirely.

An article called How analytics can boost eDiscovery and help you protect your brand by Rachel Teisch of Xerox Legal Business Services summarises what is involved here. She says that tools like technology-assisted review, email threading, relationship analysis, concept analysis, and near-dupe detection are by now considered essential for managing the case in front of you. Analytics-as-a-service 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. Continue reading

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Browning Marean scholarships to attend ILTA in Washington – closing date 19 June

ILTAILTA, the International Legal Technology Association, is sponsoring two scholarships for this year’s ILTA Conference in Washington DC between 28 August and 1 September.

The scholarships are in honour of Browning Marean of DLA Piper US. One scholarship is to be awarded to an individual who lives and works in the US and the other for someone outside the US. This reflects two things – Browning Marean’s own commitment to spreading understanding of eDiscovery around the world, and the significance which ILTA attaches to the word “International” in its name.

Browning MareanBrowning participated as speaker or moderator in many events both within and outside the US, including ILTA’s annual programmes in London and in Hong Kong.

The scholarships are open to anyone who has held positions in eDiscovery / litigation technology and support. Application is to be made by letter to be received by an extended deadline of 19 June.

There is more information about this great opportunity here.


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AccessData European tour: When data transfer collides with data privacy

AccessDataI am just back from the Sedona Conference Programme on Cross-Border Discovery and Data Protection in Berlin, on which I will write shortly.

I won’t put my suitcase away just yet, however, nor my notes from Berlin, because next week I am taking part in a three-city “Cross-Border Quandary Tour” in the UK, the Netherlands and Germany organised by AccessData. US Magistrate Judge Andrew Peck are taking part in all three sessions (details here), with a different panel for each of London, Amsterdam and Frankfurt.

The subjects of privacy and data protection go far beyond US ediscovery, but US demands for documents for litigation, regulation and investigations give the subjects their sharpest focus for those who form the bulk of my readership. Judge Peck has been invited to participate primarily because he is one of the few US judges who understands this subject from both sides of the difficulty which results from the collision between US demands and EU restrictions. He is also, of course, the leading judicial authority on predictive coding and we will take advantage of his presence to cover that subject as well. Continue reading

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UBIC, Inc. and related subsidiaries to change corporate name to Fronteo

UBICUBIC, which specialises in international litigation support and big data analysis, has announced that it is to change its corporate name and the corporate names of various subsidiaries to Fronteo, subject to shareholder approval.

The name change serves two purposes: one is to bring together more obviously the companies which UBIC has acquired.

The other reflects the transition from UBIC’s development phase to what it calls “the industrialisation and monetisation phase”. Plans include the expansion of UBIC’s AI technology into healthcare, business intelligence and marketing, the analysis of human behaviour patterns and, not least, the expansion of UBIC’s eDiscovery business following the acquisition of Evolve Discovery.

There is more information about the proposed change here.


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QuisLex gains awards and nominations for its legal services delivery

QuisLexQuisLex provides outsourced legal services across a range of activities, not least the eDiscovery aspects of litigation and investigations.

There is very much more to this than simply sitting teams of people down at computers to tick boxes. You get some idea of the technological and managerial sophistication involved from my article QuisLex awarded US patent for quality management processes in document review published in March of this year.

QuisLex’s deep skill in this area has been recognised in various places recently. QuisLex was ranked as a Band 1 LPO by Chambers and Partners for the sixth consecutive year, one of only three companies to achieve this recognition in every year that Chambers has ranked LPO providers.

QuisLex was also selected by the International Association of Outsourcing Professionals (IAOP) for the 2016 Global Outsourcing 100 List.

QuisLex was also a finalist for an award called The Future of Legal Services Innovation, part of the Legal Week Innovations Award 2016. Other finalists in the shortlist included seven prominent law firms including Ashurst, DLA Piper and the eventual winner Kennedys. QuisLex was the only alternative legal services provider among the finalists. Continue reading

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No surprises on either side as OpenText acquires Recommind

RecommindIf I say that OpenText’s acquisition of Recommind, announced yesterday, is unsurprising, that does not make it uninteresting or unimportant. There have been rumours of an acquisition by the one and of the other for some time, although the names had not been paired in my hearing. As so often with these things, it seems an obvious fit once mentioned.

Recommind is a privately-held technology company specialising in eDiscovery and information analytics. Although best known in my neck of the woods for its predictive coding technology, predictive coding is only one part of the text analytics and broader eDiscovery review capabilities of Recommind’s Axcelerate, and Recommind also has well-respected tools for contract analytics (Perceptiv) and enterprise-wide information access (Decisiv). Continue reading

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The Sedona Conference: Practical in-house approaches for cross-border discovery and data protection

SedonaThe Sedona Conference has published Practical in-house approaches to cross-border discovery and data protection after several months of public comment on an earlier version.

This is a disorientating area to practice in, particularly at the moment:

We now have a date (25 May 2018) for the implementation of the EU General Data Protection Regulation but, despite the years of argument and redrafting which went into it, it still raises questions.

Both the Article 29 Working Party and Giovanni Buttarelli, the European Data Protection Supervisor, have effectively rejected the Privacy Shield which is intended to replace the now-invalidated Safe Harbour.

Max Schrems has, only last week, followed up his attack on Safe Harbour with one on Binding Corporate Rules.

We still await the appeal in Microsoft Dublin case.

Many ask if Brexit (the UK’s possible withdrawal from the EU) will make a difference to data transfers (Answer: it will almost certainly make it more difficult).

There is, therefore, no right time to publish anything purporting to be definitive guidance. Meanwhile, however, business life must go on and data transfers occur daily simply to keep the wheels turning. Continue reading

Posted in Cross-border eDiscovery, Data privacy, Data Protection, Discovery, eDiscovery, Sedona Conference | Leave a comment

David Wallack of NightOwl Discovery talks about portfolio management and harmonising discovery practices

NightOwlDiscovery_160In this interview I asked David Wallack, General Counsel and Director at NightOwl Discovery, what trends he saw and foresaw among NightOwl’s corporate clients.

Many clients, David Wallack says, are re-evaluating both their own software purchases and the manner in which their discovery services are delivered.

One growing trend, and something offered by NightOwl, is portfolio management. This puts the management of eDiscovery projects into the hands of a single provider so that eDiscovery practices are unified as between a company’s outside counsel. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Managed services, NightOwl Discovery, Outsourcing | Tagged | Leave a comment

Dean Gonsowski of kCura talks about the increasing role of clients in the management of eDiscovery

kCura - RelativityI have known Dean Gonsowski seemingly for ever as he combines business development with user and market education. He is now VP, Business Development at kCura, and I interviewed him at LegalTech New York about his role, and about changing market trends as seen by kCura.

Dean Gonsowski says that his particular focus on his new role is on corporations as they gradually take more and more control of the eDiscovery process. In some cases this is by taking the whole application and its functions in-house. In others, they may do just legal hold and collection, or perhaps early case assessment, before passing the rest of the job to lawyers and all external providers.

Relativity has an ecosystem of people around it who can help manage it, as well as an ecosystem of applications which sit around the central core to be called on as required. This gives companies and their lawyers opportunities to make Relativity do what they want it to do. Continue reading

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Interview: Jenny Le of UBIC on how to engage with senior executives on cyber security risks

UBICJenny Le is Vice President, Discovery Services, at UBIC. That role extends beyond pure discovery matters and into other aspects of managing corporate data, including cyber security risk.

In the interview below, I asked Jenny Le how one explains to senior executives about cyber security risk.

It is difficult, Jennie Le said, to engage the attention of executives who have other responsibilities and other goals to meet. For many of them, cyber security is not an express part of the job description.

It is also quite hard to understand the potential liability which flows from security breaches derived from the number and complexity of software tools, and, increasingly, from BYOD (Bring Your Own Device) and the Internet of Things. Continue reading

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Full marks for Peter Hibbert’s Electronic Evidence and eDisclosure Handbook

Peter Hibbert’s new book, the Electronic Evidence and eDisclosure Handbook, published by Sweet Maxwell, was waiting for me when I came back from one of my foreign trips. It has gazed reproachfully at me from my bookshelf ever since, as the twin tides of data protection and predictive coding have washed around me thanks to the pending General Data Protection Regulation and the UK Pyrrho judgment. There are days when it feels an achievement to read all the tweets relevant to eDiscovery, let alone a book.

I can’t claim to have read it now – the nature of a legal textbook, if properly done, is that its table of contents and its index allow you to go straight to the sections you need. Peter Hibbert and Sweet & Maxwell have done very well in this regard, with a well structured book covering pretty well everything you need to know. Continue reading

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Nuix living up to its promises at the Insider Conference in London

NuixI was diverted from writing about the Nuix Insider Conference, held in London on 23 March, by the news of the Panama Papers which broke shortly afterwards. That was too topical to miss, and Nuix played a major part in it, as I described in my article Nuix provides the power behind the humans investigating the Panama Papers leaks.

The Nuix Insider Conference drew a very large audience from companies, service providers, forensic experts, law firms and law enforcement people. Some of the sessions were technical in nature, such as those about the optimisation of software and hardware or for the forensic subjects; others were to do with the conduct of investigations – dealing with archives, reducing data volumes and finding sensitive data for example.

EddieSheehyLondonIn opening, CEO Eddie Sheehy took as his theme “Have we lived up to our promises?”, answering with:

  • The software works
  • Support always replies
  • The information we give you back is worthy of your time
  • You have confidence to take on bigger, hairier jobs
  • To law enforcement – we help you put the bad guys away
  • To enterprise – we make you look good.

All of these things, Eddie Sheehy said, derived from the same process. Continue reading

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

An accolade for FTI Ringtail data visualisation tools as lawyers ponder reading every document

FTI TechnologyI published an article earlier today called Read the documents and then decide their relevance. What – all of them? about a UK lawyer who had commented on an article about predictive coding, saying:

As lawyers we like to see the documents, read them and then decide their relevance.

I suggested it might be good to have a look at some modern eDiscovery tools so that one could, at the least, engage in the conversation when a client, the opposition, or the court raised the point. By chance, an opportunity arose shortly afterwards to emphasise this point about taking a look at modern eDiscovery tools when FTI Technology tweeted a link to an article about a review which recognised FTI’s Ringtail as the top data visualisation solution.

It may be that the expression “data visualisation” sounds overly techy for some people. We don’t deal in “data”, they say, but in applying our expensive training and well-honed legal minds to deciding whether a document is disclosable or not. Continue reading

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Read the documents and then decide their relevance. What – all of them?

An article in the Law Society Gazette is headed High Court backs predictive coding in first contested case. It is a report on the judgment which I mentioned briefly last week in which clients of BLP won the right to use predictive coding for the purposes of giving disclosure.

Unlike Pyrrho Investments v MWB Property (on which I have written and spoken exhaustively, indeed exhaustingly) this application was contested, with the other side presumably arguing either for manual page turning, or for the use of some different technology or, at least, against the use of predictive coding.

There is as yet not much to see in terms of the recent order, with neither the Law Society Gazette article nor BLP’s own article adding much to our knowledge.

I am more interested in the anonymous comment which appeared below the article:

As lawyers we like to see the documents, read them and then decide their relevance.

Before we start, let’s be clear about two things:

  • In urging the use of technology to aid disclosure, I am NOT suggesting that you disclose documents which you have not read. Opponents of technology affect to translate the suggestion as meaning that you chuck all the data into a “black box” and throw the output at the other side. That is emphatically NOT what is meant. I accept too that wide reading is desirable; its  fence is called proportionality.
  • Most litigation does not involve very large volumes of documents nor high enough values (whether measured in money or not) to warrant the use of technology like predictive coding; the commenter, however, chose to make the comment on an article about predictive coding, and it must be assumed that the comment applies to those cases for which this technology is at least arguably appropriate.

My tweeted observation was:

Screen Shot 2016-05-20 at 16.36.33

A rather one-sided Twitter debate followed – one-sided in that no one turned out to support the idea that every document could be read in a case of any size, however much this may appeal to a conscientious lawyer.

It is not necessarily right to preserve spur-of-the-moment tweets in the amber of a blog post, so I will summarise them:

It is easy to underestimate how many documents can be created in an apparently simple transaction, especially if it extends over several years. Many would be duplicates and if technology is used only to weed the duplicates and group the near-duplicates together, then that is a major saving.

The conscientious solicitor wanting to read everything (in a big case) has multiple tiers of questions: how many documents would be formally disclosable on the broadest interpretation of the lawyer’s duty and (a narrower question) how many of those will have any evidential value? All cases come down to very few issues and very few documents. More documents does not necessarily mean better justice and the English disclosure rules are driving parties to arbitration – “we need to get a grip” said one barrister.

I referred to the recent Court of Appeal case in which the court “could not even discern from the pleadings what the issues were”. A closer focus on the issues would lead to narrower pleadings which in turn leads to less disclosure and a quicker route to the handful of points and documents which matter. As it happens, that same point came up in the panel which I moderated last week on predictive coding. It was raised by US Magistrate Judge David Waxse as an issue in US proceedings; one way of reducing discovery, he said, was to be clear what issues it concerned.

[The Court of Appeal case was The Prudential Assurance Company Limited -v- Commissioners for Her Majesty’s Revenue and Customs. Gordon Exall has written about it here].

I digress. The tweets above can stand substitute for most of what I would say in answer to the comment on the assumption (I stress again) that the comment was intended to relate to the kind of cases to which the article referred.

Reducing further observations to the barest minimum:

  • As I have said above, no one is suggesting that you disclose documents you have not read (though some may choose to do so). The primary value of predictive coding lies in weeding out the obvious dross and prioritising the rest. You can then read the ones which are presumed to be the most relevant in order of relevance, stopping when the ratio of time spent to value returned makes it disproportionate to continue.
  • If your starting point was a million documents, you may still have to read thousands, even tens of thousands of them. If you carry on reading patiently through irrelevant documents then, whether or not your client approves of your doing so, the court is unlikely to award you the costs of all that reading. Indeed, you are unlikely to be able to meet the court’s timetable for giving disclosure.
  • It is also unlikely that that you will miss the fabled “smoking gun”, or anything else of value, or anything significant which ought to be disclosed under a definition of “disclosable” which expressly requires proportionality and a “reasonable search” and which has case law authority against looking under every stone.
  • Predictive coding technology offers ample opportunity to check your work, by sampling both the documents which are presumed relevant and those provisionally deemed irrelevant.

I can quite understand those who sympathised with the Gazette comment as a statement of the ideal. I certainly don’t criticise the conscientiousness of lawyers who would like to read everything. We are forced into a practical, pragmatic approach which tempers the ideal with the brute reality that we cannot read it all. The technology is not a substitute for the exercise of a lawyer’s judgement, but an aid – an aid to the exercise of discrimination between the relevant and the irrelevant, and an aid to compliance with the rules, which requires the insertion of proportionality into the calculation of how much must be done.

I really do not care for their own sakes if the lawyers are working inefficiently, and it is not my business to suggest that some have practices which must inevitably lead to doom. I am, however, extremely interested in preserving disclosure as a source of evidence before the rule-makers decide to dispense with it and before the clients turn their backs on litigation. I am interested too in London’s role as a centre for dispute resolution, and not just for the very rich.

The rules, the cooperation required by the rules, and the discretion of the court, give ample opportunity to cut down disclosable information properly and thereby to reduce the time and cost of litigation. Technology helps that process. If we don’t use the rules and the technology for that purpose then litigation must inevitably decline, and at all levels.

I know nothing of the author of the comment. It may well be that he or she has a practice which allows the luxury of reading every document and making a viable business out of doing so. The part of the comment which I object to is its opening “As lawyers we like..”, purporting to tar the whole profession with this approach.

There are many who have appreciated that we cannot go on like this and have, at the least, taken the first step and seen some of this technology. If, having done so, you still reject it for your own use, then at least you will be able to engage in the conversation when your opponent suggests its use.


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Now we have a contested predictive coding application succeeding in the UK

Yesterday morning, I moderated a panel at the IICE Summit on the subject of Pyrrho and predictive coding. Even as we were talking, the court was delivering a judgment in another case in favour of a party seeking to use predictive coding for disclosure in the face of opposition.

We do not yet know much about it, but here is BLP’s article about it. We are all waiting with interest to see what the battleground was.

My panel comprised US Magistrate Judge David Waxse, Vince Neicho of Allen & Overy, Hal Marcus of Recommind (who sponsored the panel) and Ed Spencer of Taylor Wessing who steered the (agreed) predictive coding application through the court in Pyrrho.



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

Adi Elliott of Epiq talks about using the DMX eDiscovery Dashboards to gain business intelligence

Epiq_logo_200Adi Elliott is Vice President, Market Planning, Discovery, for Epiq. I caught up with him in Hong Kong shortly after Epiq’s announcement of enhancements to the DMX eDiscovery Dashboards, and I asked him about them.

The video interview is below.

Adi Elliott said that the DMX enhancements were aimed at giving business intelligence to clients, allowing them insights on which they could make business decisions.

At one level, this covers market automation, that is, the ability to decide whether one marketing campaign is working better than another.

The primary purpose, however, is to give the clients a deeper understanding of the work which is being done on their behalf. Adi Elliott gives an example of two different firms being employed in parallel on the same task. Using the DMX eDiscovery Dashboards, the clients could understand who did the better job and, perhaps, draw wider lessons for future use. Continue reading

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Guidance Software Data Risk and Privacy Survey results

guidance-softwareGuidance Software undertakes a survey each year on some aspect of data management or data risk. This year, and unsurprisingly, the survey is about data risk and privacy, with the subtitle How concerned are organisations with data risk?

The survey results, which you can find here, show that more than 580 respondents contributed to the survey. For 46% of them the protection of sensitive and private data is a top priority. As the survey points out, the protection of data involves a mixture of hard benefits (reducing risk, optimising storage by defensible deletion, heading off fines) and soft benefits (corporate responsibility, reputational integrity, customer confidence).

Perhaps most interesting question was the one about the reasons that prompt investment in a solution to manage sensitive or private data. The “winner”, at 37%, was regulatory and policy compliance. Data breach, which I would have pictured as more significant, came in at 17%.

This focus on mitigating risk meant that improving business intelligence ranked at only 8% in the reasons for investment. Continue reading

Posted in Data privacy, Data Protection, Data Security, Defensible deletion, eDiscovery, Guidance Software | Leave a comment

Discussing online courts as we fight about the cost of paper bundles. An institutional shambles

Two recent documents will be of interest to those who are concerned (in the widest sense of the word) with the development of online courts in England and Wales. If you wonder why this is of relevance to my generally ediscovery-focused readers (concerned mainly with high-end litigation) the answer lies partly in the fact that every component of the cost of litigation is relevant to the willingness of parties to litigate, and to London’s position in that battle (I have an article coming up about Singapore on that subject). Those with big discovery / disclosure issues are interested also in an upward adjustment in the acceptance of technology generally, by both the Ministry of Justice and the judges. Before you get to the technology, there are wider issues to contend with.

One of the documents is the response sent by Professor Richard Susskind on behalf of the Online Dispute Resolution Advisory Group of the Civil Justice Council in answer to the interim report of Lord Justice Briggs’ Civil Courts Structure Review. The other is a paper written by David Harvey, recently retired as a judge in the District Court in Auckland, New Zealand, and perhaps the most informed and articulate judicial thinker about the future of dispute resolution. The hopes of all of them – Briggs, Susskind and Harvey – will, I fear, be undermined by funding issues and the supine indifference of the relevant staff at the Ministry of Justice. Continue reading

Posted in Access to Justice, Court Rules, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Judges, Litigation, Ministry of Justice | Leave a comment

Some eDiscovery industry appointments at kCura, Consilio and Xerox

The worldwide eDiscovery industry has few major corporate players and, relative to the size of the market it serves, a small pool of individuals at its top.

I do not aspire to keep up to date with all the promotions and moves between companies, but there have been enough in the last few weeks to warrant a summary, at least about the people known to me.

In the alphabetic order of their companies:

Mike Brown has been appointed Regional Director at Consilio. Mike Brown was one of the original small team who set up Epiq’s London office, coming from a background in law firm litigation support. His appointment presumably reflects the fact that, as Consilio expands its non-US focus, it needs more senior people to take charge of its regions.

Steve Couling has been appointed VP of International at kCura, stepping up from a post previously confined to EMEA. At the Relativity Spring Roadshow in London a few days ago he showed us a list of the senior appointments which kCura has made in, for example, Hong Kong and Australia, and Steve was the obvious choice to take overall control of kCura’s growing non-US empire.

Stephen Henn has been appointed Vice President at Xerox Legal Business Services, the eDiscovery and compliance solutions division of the Xerox Corporation. His role is to work with Xerox Legal Business Services clients to develop new approaches to governance, risk and compliance issues as well as discovery projects.

I have undoubtedly missed others. This is a booming industry at the moment, and not just in the US.


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FTI webcast on 25 May: what does the future hold for predictive coding?

FTI TechnologyI wrote recently about a webcast taking place on 25 May produced by FTI in conjunction with The Lawyer. We now have the details of the webcast which you can find here.

Its title is What does the future hold for predictive coding? The context is the recent UK decision in Pyrrho Investments v MWB Property in which Master Matthews gave approval to an agreement between the parties to use predictive coding to deal with a large document population.

The webcast will be hosted by Matt Byrne, Deputy Editor of The Lawyer. The speakers are Jonathan Fowler, senior director and predictive coding expert at FTI Consulting, Giulia Da Re, Litigation Lawyer for Lloyds Banking Group and Mark Chesher, Legal Director for Addleshaw Goddard.

The webinar will cover:

  • What makes Pyrrho Investments v MWB Property so important?
  • Why hasn’t predictive coding been used in the UK before?
  • To what extent has Pyrrho removed some of the nervousness that may have surrounded the use of predictive coding in the UK?
  • How will this affect private practice/in-house legal teams?

Continue reading

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Nuix webinar on 31 May: EU General Data Protection Regulation – Need to Knows

NuixOn 31 May, Nuix is presenting a webinar called EU General Data Protection Regulation – Need to Knows. The subject, and the panel, is a re-run of a session at the very successful Nuix Insider Conference in London on 23 March.

I was one of the panellists and the others were Mark Burgess of Vodafone, Mark McCluskie of the Police Service of Northern Ireland and Julie Colgan of Nuix; the moderator was Paul Slater of Nuix.

Our GDPR panel was called What can you know in 72 hours? It embraced the forthcoming changes in the law, cyber security, technology and the allocation of responsibility for each of these components.

Two things emerged in particular. One was that the need to deal with privacy and data protection cuts across, and depends on, a very wide range of skills and technology components. If you go the the Nuix website and click on the Products and Services link, you see a very wide range of software tools by category and product together with a focus on industries and roles. Almost all of of the roles will be touched by the GDPR; almost all of the tools are relevant to dealing with some aspect of it.

The other message was that the implications of the GDPR will impose serious strain on all the players, and not just on businesses needing to comply with its requirements. Those responsible for regulation and for law enforcement face new duties. They have a little under two years to be ready to face them. Continue reading

Posted in Cyber security, Data privacy, Data Protection, Data Security, Discovery, eDiscovery, GDPR | Tagged , | Leave a comment

Epiq webinar on 18 May: Understanding why REAL managed services and eDiscovery makes a REAL difference

epiq-logoDaniel Gold of Epiq is presenting a webinar on 18 May called Understanding why REAL managed services and eDiscovery makes a REAL difference.

The capitalisation of the word REAL implies that some levels of service are less comprehensive than others. Daniel Gold will explain why a mixture of dedicated infrastructure, well-chosen applications and the right people are necessary to remove bottlenecks from the eDiscovery process.

There is more information and a registration form here.


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