I do not spend a lot of time looking at applications. This is not because I am not interested – I served my time as a litigation software developer and am fascinated by the leaps which have been made in development tools and in ways to make software friendly to the user – but is a matter of priorities; I am not a user and do not give system selection advice, and there is enough to do covering developments in rules and practices across multiple jurisdictions.
I am interested in how providers market themselves, that is, how they attract attention and persuade potential users to come in through the door. I have written before about how Cicayda achieved this from a standing start, with an attractive website, interesting articles, unbounded energy and a conference, RELEvent, which I much enjoyed attending in Nashville last year. Behind the razzmatazz, however, there is serious development work going on, and I recently had the opportunity of a web demo at the hands of CTO Jason Cox and VP of Knowledge Strategy Marc Jenkins.
If I do not here give you a software review, that is partly because Cicayda’s website is a model of its kind and shows you what you need to see. Its products – fermata legal hold, staccato early case assessment, drone intelligent search and the new Cicayda review (the lower-case styling is theirs) are easily found, well-illustrated and accompanied by video demos which make it superfluous for me to do more than steer you towards them – why read my views when you can see it for yourself?
I will spend a moment, however, on the legal hold product, fermata, partly because it encourages an approach to legal hold which is relevant outside the UK. The non-US eDiscovery / eDisclosure world manages without the box-ticking and bright-line definitions of the US legal hold rules, and contents itself with broad concepts. It has always been the case that potentially relevant documents must be preserved once litigation is in hand, but there is no settled code as to what must be done before that. Practice Direction 31B of 2010 reminded lawyers (in paragraph 7) that they must advise their clients to preserve documents and, in particular, to stop automatic deletion processes. Apart from that, the absence of documents is judged by discretionary factors by which the court considers what has been done (or not done) and decides whether justice can be done in all the circumstances.
Given that, how do you sell in the UK (and other jurisdictions) a tool designed for the excesses (as we see them) of US legal hold requirements?
The answer is that legal hold products like Cicayda’s fermata can be used as generic notification systems – as a managed communication platform for fact-gathering in which the US principles of legal hold can be adapted to the (fairly obvious) requirement to find out what you have got to make sure that nothing is lost. Cicayda’s fermata
is not unique in this – many products have legal hold applications which can be adapted to put people on notice, to identify custodians and gather information from them and to capture the results. Cicayda’s fermata does this particularly well.
My demo also showed the benefits of being light on your feet in development terms. The UK rules include a structured form of information gathering which is the Electronic Documents Questionnaire contained in Practice Direction 31B. During our conversation, I sent this over to Jason Cox. Soon afterwards, he sent me a link allowing me to see how the text of the questionnaire could be incorporated into a notice sent out to potential custodians. For the moment, this is just the raw text of the entire questionnaire; it would not take much, I imagine, to set out the questions in a way which made it easy to capture the answers.
The system can handle reminders, track responses and include body text which may be a mixture of generic text, the lawyers preferred supplements to that generic text, and case-specific text.
Have a look at the website. Have a look in particular at the video for the ECA tool staccato which, by mixing information derived from the data and variable elements added by the user (such as the hourly rate of reviewers and the their estimated document rate per hour) allows you to see in an attractive display what you have got, how much it will cost to manage it, and how many people will be needed for what period. This can be refined by, for example, removing duplicates, filtering by some relevant element, or by applying data or keyword limitations. The resulting query can be exported and shared with others.
A web demo obviates the need for appointments and travel and (a point I make often) means that no lawyer can say that he or she did not have time to consider alternative tools for managing eDiscovery / eDisclosure. Just ask.