Catching up with KPMG

Part of the function of the e-Disclosure Information Project is to keep up with what the providers of software and services are doing. Given my emphasis on the human aspects of this business (which recurs in this blog and elsewhere in the form of questions like “Would you trust them with your client’s data? Do you like them?”) it is important to keep in touch by going in to see providers or welcoming them out here in Oxford. Since I neither buy nor directly recommend anything, these sessions are free of sales pitches, save in the subliminal and low-key sense that there is a mutual interest in sharing information.

I always seem to have a backlog, both of outstanding invitations and of writing about them. That reflects the balance between things I do directly for the Project’s sponsors, the wider objective informational aspects, the range of material which has to be read from the various jurisdictions in which discovery takes place, and the fact that there is always a conference organiser bullying for a set of slides.

KPMG comes to mind every day for the wholly obscure reason that my coffee cup sits on a tile which was the 1993 Christmas present from KPMG Forensic Accounting. It is functional as a mat, albeit that it shows a 1994 calendar. Like KPMG itself, it can claim longevity in a market which is full of new companies, staffed by people who were still at school in 1994, and in which corporate freebies have a marketing life of about ten minutes. I must have been on their mailing list on the strength of accounting negligence claims which I had run as a litigation partner (including JEB Fasteners v Marks Bloom in 1984 and Al Saudi Banque v Clarke Pixley in 1990, both still cited).

Explaining the Procrustean Bed

My post Zander sees his Woolf CPR predictions fulfilled refers you to an article by Michael Zander QC.

As an aside, a generation deprived of a classical education may be puzzled by Zander’s reference to a “Procrustean bed”, as I admit I was when I first saw it in a footnote to the old Rules of the Supreme Court. Lord Donaldson had used the expression in relation to the size of appeal bundles. I have to say I assumed in my ignorance that this was a geological metaphor. What he meant was that it was not necessary to pad out the bundles to the recommended size, nor omit necessary pages to meet the suggested size. The reference was to the apparently genial host Procrustes, who would invite passers-by to lie on his bed. He would then stretch them or amputate their limbs as required to fulfill his boast that his bed was just the right size for everyone.

One commentator refers to Procrustes drily as “the ancient champion of enforced conformity”. We do not, of course, want such precise conformity from our judges, ancient or not, but some degree of consistency would be nice, at least in respect of disclosure orders. We do not need the same answer every time, but the right answer, a proportionate answer, based on information provided by the parties “at the earliest practical date, if possible at the first Case Management Conference”.

The quotation comes from Paragraph 2A.2 of the Practice Direction to Part 31 CPR. That involves the exercise of informed discretion. Reading the damn thing and applying its provisions is not, however, discretionary.

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Zander sees his Woolf CPR predictions justified

Michael Zander QC, now Emeritus Professor at the LSE, was a forthright and eloquent critic of the Woolf reforms which led to the Civil Procedure Rules in 1999. Few took much notice of his predictions, least of all Lord Woolf. I was amongst the vast majority who ignored him, won over I think in retrospect, by Woolf’s eloquence and industrious decency in tackling the twin evils of delay and cost.

It was a shock to open the rather large new rule book and discover that all Woolf’s emphasis on the role of technology – particularly in respect of disclosure – had been reduced to a single reference to the word in the overriding objective. I also recall a sense of growing unease on seeing the sum total of the new burdens which fell on practitioners at the early stages of a case – each of them had been widely debated in the run-up to the final version of the rules, but seeing them altogether simply did not square with the fact that relatively few cases went to trial anyway. How could it be right to impose on every party to every case a set of duties and obligations designed to reduce a burden which was irrelevant to most cases even under the old rules?

Podcast summarises Equivio benefits

I recorded a podcast last week with Warwick Sharp, Vice President of Marketing and Business Development at Equivio. It is available from Equivio’s home page. I know there is no great technology involved in podcasts, and I might be expected to be jaded about technology anyway having been immersed in it since the dawn of time (that is, the mid-1980s) but I still think it remarkable that I can sit in Oxford,talking to Warwick in Israel via a US telephone meeting system controlled by an organiser in London (Enterprise Technology Management) and that we can be listening to the results ten minutes later.

If I am impressed by some basic telephony and recording, then what to make of Equivio itself? Some of the technology in this market does relatively simple things which are hard to explain. It is dead easy to explain what Equivio does, but one cannot begin to think how it achieves it. Does that matter? Not a lot, frankly, as long as you can satisfy yourself as to the results. Equivio has very quickly gained many very satisfied users.

Free e-disclosure podcast from CPDCast

I recorded a podcast last week with James Sheedy of CPDCast. You can listen to it for free and solicitors, barristers and ILEX member can get CPD points for doing so. There is a note at the bottom of this post explaining how to access the podcast.

I have to say that I prefer an audience I can see to a microphone in a padded cell. From the audience perspective, however, there is obvious benefit in having talks like this delivered to their desks and downloadable to an MP3 player, although they don’t then see the slides with which I usually illustrate the subject. I have been asked to do more of these, including a longer series covering the full range of topics – more on this when we have advanced our plans.

What was interesting for me was that James Sheedy composed the questions after some (impressively fast and thorough) research of the subject from scratch. Although much of the ground covered was inevitably the same as that which I devise for myself, the outsider’s perspective helps to bring out aspects which I do not necessarily think of. One of his questions, for example, was predicated on the assumption that the lawyer starts with a room full of paper. The challenge is to persuade people to investigate a purely electronic solution BEFORE existing electronic sources are turned into paper at vast expense in printing and copying.

The FSA swoops on the unprepared

The American Museum of Natural History in New York contains many tableaux – scenes of animals and man in various stages of early development. My son and I spent an afternoon in there when LegalTech had ended and I found that I recognised many familar types from the litigation world amongst the figures, most obviously (too obviously perhaps) the dinosaurs of whom I wrote in LegalTech lessons from extinct species.

I have now been through the photographs which I took with half an eye on their value as illustrations to this commentary. You may expect to see pictures of walruses and buffalo who look like judges,  primitive men for whom technology meant flints and whose idea of co-operation involved spears and clubs (you know who I mean,  all you who use discovery / disclosure as a bludgeon) and, of course, dinosaurs.

Blame Brown and be frightened of the FSA says Regulator Sants

Hector Sants, Chief Executive of the FSA, made two strong speeches last week. In one he blamed Gordon Brown for his contribution to the economic crisis. In the other he warned of a tough new attitude to regulation which ought to focus minds somewhat.

“It is quiet out there. Too quiet”. I am not sure whence I get this expression, with its intimation of pending violent attack. It could have been in one of those novels of war or Empire which I read as a child – about Hornblower or Richard Hannay or, later, of Flashman; it might have come from one of the old war films, with John Mills peering across the trenches, or scanning an empty sea or sky for the threatening Hun; perhaps it was in a Western, as John Wayne’s instincts told him that a cloud of arrows could be expected anytime soon. These stories often include a powerful but evil figure whose outward success conceals a past which is uncovered in the closing chapter or the last reel. His reputation might, for example, have depended on an alleged “economic miracle” which is shown to have been a sham, bringing misery for millions as it fails.

This sense that something is about to happen has been hanging over those whose business involves litigation and regulatory or internal investigations. The battle analogy is an apt one. Some of the units have been fighting hard since the economic “war” began; others have seen their numbers thinned out as they wait for the coming conflict. As in all the most gripping war stories, the attack is expected on more than one front.

One of those is litigation. The lull in the UK has lasted for ten long years. The CPR achieved its object of persuading parties out of the court system not, as was intended, by encouraging parties down the flower-strewn path to mediation but by making it too expensive to litigate. There is no one baddy here, but several: we can blame the government for its neglect of civil justice and its contempt for that admirable principle of “access to justice” which it mouthed even as it hiked court fees and cut Legal Aid; we can suggest that the rules and those who administer them have paid excessive attention to encouraging settlement and too little to the basic mechanics of case management; we can point to lawyers whose disdain for cutting the hours spent has been obscured by complaints about the rates per hour; not least we can point to clients who produce sow’s ear data and whine about the cost of turning it into silk purse evidence.

Autonomy finalises Interwoven acquisition

An overnight press release confirms that Autonomy’s acquisition of Interwoven has been finalised. It has been understandably difficult to get any useful comment out of either of them (I have tried) whilst the transaction was awaiting the formal approvals necessary to close it.

For those who have invested in Interwoven’s content management applications, it will be reassuring to read that “Autonomy is committed to the on-going development and support of Interwoven’s products and solutions in line with all currently published Interwoven roadmaps.”

What interests my readers is the hosted document review platform Discovery Mining, which Interwoven itself only acquired during 2008. Of this, Anthony Bettencourt, CEO of Autonomy Interwoven, says:

For Interwoven’s Discovery Mining customers, Autonomy offers the most complete EDRM solution on a single technology platform…. We will bring together the best aspects of Discovery Mining and Zantaz Introspect to meet your current and future processing, review and production needs. Autonomy has 6 data centers with 6,000 servers, and Discovery Mining will now become our West Coast processing center while Boston will remain our East Coast processing center.

That tells us little about actual development of the highly-regarded Discovery Mining application. My informal understanding (which makes logical sense) is that Autonomy’s IDOL engine will be put under Discovery Mining. It is not really clear whether we will see the convergence of Introspect and Discovery Mining into a single product or whether the two applications will be differentiated and aimed at different markets. It would not be surprising if long-term decisions like this have yet to be made.

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The growing importance of metadata preservation in eDiscovery

If UK lawyers do not share the US enthusiasm about the preservation, collection and use of metadata, that is in part because they are not clear what it is and how it might be used. A forthcoming webinar will be a painless way to find out.

Guidance Software is hosting a webinar on Tuesday 24 March called The growing importance of metadata preservation in eDiscovery. As the developers of EnCase eDiscovery, whose function is the collection across corporate networks of discoverable documents and data, Guidance has an obvious interest in the metadata – data about data – which lies in and around the documents which may become evidence.

How TREC can help you evaluate e-discovery investments

H5 and Clearwell Systems are giving a webinar on 19 March about TREC Legal Track’s practical application in evaluating and assessing search and review methods. Why should we in the UK pay attention?

There is a danger in talking to UK audiences about the higher end of US thinking on information retrieval as it applies to litigation. That word “discovery” (which we abandoned ten years ago for no obvious – or, at least, for no good – reason) serves as a flag which says to UK litigators that it is about someone else’s problem. Other assumptions follow – that the output of such thinking will be academic rather than relevant to everyday life, the volumes will be beyond imagining, the language will be impenetrable and so on.

Certainly, there are some more basic problems for UK practitioners. What is this Practice Direction to Part 31 which the judge in Digicel (St Lucia) v Cable & Wireless banged on about? Oh, I see, they say: big case, foreign business, two counsel on each side instructed by major firms – nothing to do with me then. Now, tell me how I get all these e-mails printed quickly so I can start reading them?

Nevertheless, it is no bad thing to make yourself aware of the thinking in US circles. It is not that we will be in two years where they are now, but that if we watch what they do, we may avoid altogether the worst excesses of US electronic discovery.

Ark Group Conference 8-9 June 2009

The brochure came out today for Ark Group’s e-Disclosure conference taking place in the Ibis Hotel, Earls Court, London on 8-9 June.

The main attraction is Lord Justice Jackson who will be presenting a review of the litigation costs working paper which he is spending 2009 working on. He will be talking about his investigation into cases of all sizes, looking at the costs in all the Specialist Courts (that is, the Commercial Court, Technology & Construction Court, the Mercantile Courts etc) and discussing the limitations in the present system which have been raised by others in the course of his review.

Law Society Seminar – Disclosure – the risks after Hedrich

I spoke yesterday at a seminar organised by the Law Society and sponsored by Legal Inc and Millnet. The theme was as foreshadowed in my article Law Society Disclosure Seminar in London and was implicit in the name I gave it: Disclosure – the risks after Hedrich.

The title referred to Disclosure rather than e-Disclosure because the electronic side to this subject is servant to the primary obligation to give disclosure of documents under Part 31 CPR. It referred to Hedrich because although the solicitors in Hedrich v Standard Bank London were found not to have been negligent, and beat off the wasted costs application brought against them, I am not sure I would count it much of a victory to have had to come off the record in mid-trial and then go all the way to the Court of Appeal to fight off the claim that my failure to spot my clients’ disclosure failings had caused loss (and how) to the other party.

Guidance Software Q4 results – a guide to the wider market?

Guidance Software, Inc., which is amongst the sponsors of the e-Disclosure Information Project, has posted Q4 2008 results which are its best quarter’s results in its history, with revenue of $25.2 million. CEO Victor Limongelli was on bullish form in an analysts’ discussion, whilst retaining a sense of caution wholly appropriate to the uncertainty of the times.

Guidance’s results may be a straw in the wind, an indicator of the way things are going. I say that because its market is up at the front of the process which ends in a discovery exercise, a regulatory inquiry or an internal investigation. If you are in mid-case, then you need a review application. If you are starting down that trail, you are collecting data, probably with Guidance’s forensic tools. If you are a large company which thinks you are going to face a need for collections in the near future, then you are buying Guidance’s EnCase eDiscovery or something else whose purpose is anticipatory rather than merely reactive. The report to which I point you above sets out the numbers of Q4 sales relative to previous periods, as well as the interesting statistic that Guidance taught 25% more students how to use its products in 2008 than in 2007.

Law Society Disclosure Seminar in London

I am presenting a two hour seminar in London next Monday 9 March under the auspices of the Law Society.

Sponsored by Legal Inc and Millnet, both well-known suppliers of electronic disclosure solutions, this is a nuts-and-bolts review of everything from cases to rules, from a survey of the problems to a look at solutions, from points of detail to a review of the wider context. It includes a look at some applications.

The title of the seminar is Disclosure – the risks after Hedrich. Most of it is about electronic disclosure, but that is because most documents now in existence were created electronically, still exist electronically and therefore ought to be disclosed electronically – that is, their electronic existence should be disclosed even if it is not practical or cost-effective to handle or exchange them electronically.

As the sun sinks slowly in the West we say farewell to LegalTech – or do we?

You are all too young to remember the clichéd ending to those American travel documentaries which always ended with the sun sinking slowly in the West. So am I, despite being old enough to remember telexes and carbon paper as the must-have office equipment. The expression lives on, in the UK at least, because of the Peter Sellers parody “Balham – Gateway to the South”, which itself dates from 1964 – a cliché kept alive by a parody which is itself too old for most to remember.

My photograph was taken on the Queensboro Bridge as we left LegalTech for JFK this year, made possible by the generous windows of the large black limousine which Nigel Murray had commandeered at a good rate with a degree of resource doubtless acquired in his army years. This combination of clichés, parodies, sunsets, New York and LegalTech was brought to mind by a slight sense in some quarters that this Leviathan of a show may have had its day.