My self-imposed job description involves flitting between all the players in the electronic disclosure / electronic discovery world, picking up information and ideas from one place and dropping them in another. I talk to judges, lawyers and technology suppliers, read a lot of web-based information and exchange e-mails and tweets with people from every corner of the e-Discovery world – “world” in both the figurative and literal senses. I am interested in the court rules, the practice and the technology and in how they relate to each other.
I keep secrets where I have them – from working with lawyers on behalf of their clients or when I am told of pending technology or marketing initiatives, to say nothing of the gossip which flies around – but, on the whole, my role is to talk and write about what I hear or read. The only filter apart from confidentiality is whether I am interested and think that others will also be interested.
This is a privileged position – I have lots of privileges, but the ability to pick off only the things which interest me outranks the rest. It allows me, magpie-like, to pick out the bright and shiny things and leave the rest on one side.
One of the bright and shiny things in the litigation software market is Attenex, whose visual analytics caught my eye some time ago for precisely the reason why they attract lawyers – they make it possible to grasp the overview and to drill down to the detail in a way which is simultaneously efficient and intuitive. Attenex is now owned by FTI Technology, as is the equally iconic Ringtail Legal.
FTI has now had time to bed these products down into their overall (and very broad) software and services offering and I thought I ought to go and see where they have got to and how the pieces fit together in the process. Craig Earnshaw, managing director of FTI technology in London, invited me in for an afternoon recently to bring me up to date.
FTI Technology is a business segment of FTI Consulting. Its focus is on e-Discovery software and services, and its command of the whole process has been made up from a series of slow and careful acquisitions. Its own website describes the process thus:
What began as partnerships with several leading e-discovery pioneers including Ringtail, G3 Consulting, Strategic Discovery and Attenex has grown into the unified brand of FTI Technology with the vision to provide end-to-end solutions for e-discovery.
That “unified brand” appears clearly from the FTI Technology website which gives priority to the e-Discovery process as a whole and to FTI’s ability to get involved throughout the whole of that process – “end to end” as the unavoidable jargon puts it. Many of FTI’s clients value just that – the seamless flow from the beginning through to the end of the e-Discovery process, with FTI’s consultancy and technical services gluing together the functionality brought by the individual software products.
This is much aided by the commonality and technical interfaces between those components – work on this was well in hand before FTI acquired Attenex, with connectors already in place between Attenex and Ringtail. What might be overlooked by an outsider is that the software components also stand alone in their respective places in the process: you can use Attenex for its own qualities and send the data to a different review platform; Ringtail Legal may be your review application of choice, wherever the data originated and whatever intermediate proces
ses it has been through on the way. There is good reason why the pre-acquisition logos of Attenex and Ringtail appear on FTI’s home page, notwithstanding their integration into the overall process. The screenshot of Attenex Document Mapper has become a visual shorthand for the whole visual analytics environment.
All good e-Discovery stories, of course, start with the collection of data. FTI’s primary tool at this stage is one they developed themselves called QuickCull. When I saw it on its launch at ILTA in Washington last summer, it was a software application. It now comes primarily as an appliance, that is, a free-standing box which enables (as its name suggests) the quick culling of data to reduce the volumes at the earliest point in the process. I was shown a QuickCull demo by Joel Jacob of FTI via WebEx from the US (I have made this point a couple of times recently, but it is worth repeating – software companies can deliver demonstrations of their applications to your desk).
If you want a quick look at what culling involves, go to Windows Explorer on your own PC and do a search for everything. I have got 240,000 files on my C:// drive alone, plus over 5 GB of reasonably current e-mails. I have a 1 Tb network drive, and about the same as off-line storage, 200 DVDs, a laptop and a BlackBerry. If I am a lawyer, newly instructed on a case with, say, ten relevant custodians, I need a way of cutting quickly and cheaply through volumes like this – just multiply my relatively modest collection by ten to see what the problem is. I need to get rid of duplicates, discard files which are patently irrelevant, and get easily to other parts of this collection which might have some bearing on the case which I am supposed to advise on.
Quite apart from anything else, the clients will want an early feel for the scale of the problem in pure volume terms, because that bears directly on the costs. In doing so, I must take care not to discard potentially relevant information and will want more than one way of searching in order to exert some control both over what I keep and over what I discard. I want more than custodians, folders and file names to help with this – I need to use the metadata in the files as part of the search process. The result may include foreign language files. In most cases, a cull using tools like this will reduce the potential workload significantly. That is what QuickCull is for.
So far so good – you have disposed of the stuff you obviously do not want, but are still left with a bigger heap of documents than you can review. Besides, the next rule-driven stage involves discussing the scope of the task ahead with opponents – a meet and confer under the Federal Rules of Civil Procedure or the discussions required by the Practice Direction to Part 31 CPR under the UK rules. Nor is this requirement merely to do with formal compliance with the rules. If the “other side” in your context is a regulator, it is not rules but his demands – generally urgent demands – which you must focus on quickly. Besides, the client still wants to know both what you think about his position and what, in broad terms at least, the exercise is going to cost him.
This is the space which Attenex filled before FTI bought it and which it fills still, whether as part of an all-FTI process or whether you need some powerful processing intervention in a process otherwise run on other platforms. In an all-FTI context, data is passed seamlessly from QuickCull into the content analytics application Attenex Patterns for early case assessment and predictive modeling. The value of Attenex Patterns lies in the saving of time and review cost, whether this is expressed (as FTI do in the Attenex Patterns brochure) as “80% of the cost and 80% of the time” or whether it is put as Lord Justice Jackson put it in his Preliminary Report on Litigation Costs in this way:
The cost models show that the potentially massive cost escalation comes at the point of review. This suggests that, if electronic review tools are not used to reduce the data before lawyers start to read the documents, then the costs become disproportionately large because of the sheer volume of data. [Vol 2 Para 6.6 on age 383]
Anything one can do to reduce the volumes which go into the review stage is clearly beneficial. Attenex Patterns was one of the applications which Lord Justice Jackson saw and which are referred to in paragraph 2.2 on page 365 of his Final Report.
This is an overview, not a software review and you can, in any event, get more information about Attenex Patterns from here. Nick Athanasi, whom I remember from his G3 days, gave me a demonstration of it and will doubtless do the same for you if you ask him nicely.
In fact, what Nick showed me was not Attenex Patterns on its own, but the integration of Document Mapper into Ringtail Legal, the long-running document review application which FTI owned long before it acquired Attenex. I had not appreciated until this meeting that Ringtail users who are not also full Attenex users can get the power of Attenex built into their Ringtail installation. This means that data does not have to be passed between applications – this is not necessarily difficult anyway, but there are obvious benefits if you can use Attenex Patterns iteratively, that is, to go back into it armed with information which was not available on the first pass and re-run your queries and processes.
Ringtail now has a concept database, which allows the data to be accessed by traditional searching in Ringtail or by using the analytics features of Document Mapper, and can create the review assignments and workflows for conducting reviews.
I said above that discovery stories start with collection. If a QuickCull appliance is used then that is how the data arrives en route to being uploaded into Attenex or Ringtail. Much data, however, arrives in more conventional form such as the hard drive on which it originally sat. Steve Buddell gave me a tour of the labs into which the data goes on arrival, and described the process which ensures not only that it is secure but that the source can be produced in its original form in the event of a future challenge. I will not describe it to you, but if had to choose between robbing a bank and breaking into FTI’s labs, the bank looks the easier option.
This is part of what I mean by my headline There is more to FTI Technology than Attenex and Ringtail. These may be the names which everyone has heard of, but they are part of a framework of infrastructure, processes and workflows – to say nothing of the people – which together make up FTI Technology.
My afternoon included more than I have described here, and there was plenty I should have seen but which we ran out of time for – managing director Jim Vint was due to tell me about FTI’s handling of structured data, for example, which can outstrip more everyday sources in terms of both volume and complexity. That is a subject in itself which I aim to come back to.
There is a value in stopping there anyway. FTI’s web site does it better than most, but it is hard for large companies simultaneously to convey on their web sites both the broad sweeps and the detail. The applications and processes which I have described here are, separately and together, the parts required for relatively ordinary commercial cases. FTI would want to you be aware that they handle very big litigation and regulatory matters, but you probably knew that anyway. It is, perhaps curiously, harder to convey that all this technology is readily available for smaller cases.
If you have read a few of my recent posts, you will know two things – that there are many lawyers out there who know that we cannot go on pretending that we can run modern litigation as if the world still used paper, and many more who hope that the whole subject can be ducked until they have retired. The result, in this prolonged interim stage, is litigation which is very much more expensive than it needs to be. This in turn is a denial of justice, as companies abandon claims or settle on bad terms rather than turn to the courts. 
That is in part the fault of the courts, at both an institutional level (where the rules are made) and at the level of individual judges who, as Lord Justice Jackson observed more than once, are not using their existing management powers to control costs.
We will turn the Queen Mary eventually. Meanwhile, you do not have to wait for courts and judges. What many lawyers have in common with them is an assumption that electronic handling of electronic documents is disproportionately expensive. It clearly is a bigger task to handle larger volumes of documents than to handle smaller ones. The wasted expense, however, lies in trying to handle those larger volumes by the same methods (and the same rules) as were thought adequate for the volumes of a decade ago. What is incomprehensible to me is not so much that the courts lag behind (when did they not?) but that people seem happy to make assertions as to expense without either considering what the alternatives are or – and this is the easy bit – just contacting some providers and asking them what the costs will actually be.
The costs are only part of the equation. They are meaningless without considering how you will manage otherwise (there are two broad choices really: do it all by hand or quietly ignore the rules and pretend the electronic documents do not exist – which do you prefer as a professional matter?).
It is not as if the suppliers of software and services are hard to find. FTI is in High Holborn, a stone’s throw from the RCJ (I wonder why that image comes to mind this week?). You do not need to spend a whole afternoon as I did, but Craig Earnshaw or Nick Athanasi will quickly help you identify what is required and what the range of costs is. This is a competitive market, and a parallel call somewhere else will soon give you a rival set of figures and functions. The functions bit is important – you get what you pay for in this business as in any other, and two sets of numbers are meaningless without an idea of what you are getting for your money.
One last factor: do you like the people to whom you may entrust your clients’ data and with whom you will have to work? I do, but you can only find out by meeting them.
Craig Earnshaw craig.earnshaw@fticonsulting.com
Nick Athanasi nick.athanasi@fticonsulting.com
FTI Technology
Midtown
322 High Holborn
London , WC1V 7PB
Tel: +44 (0)20 3077 0500
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