Xerox Litigation Services on China’s new data and cybersecurity regulations

Xerox Litigation Services‘ increasing interest in the Asia-Pacific region appeared in an interesting article on the Xerox E-Discovery Talk blog last year by Rachel Teisch about the new Hong Kong eDiscovery practice direction. It was called A Game-Changer for E-Discovery in Hong Kong which was widely distributed by others with an interest in the region.

Rachel Teisch has now turned her attention to new restrictions on the use of personal data in China and to new cybersecurity regulations in her article headed  Are China’s New Data and Cybersecurity Regulations a Wolf in Sheep’s Clothing?

One of the reasons why Xerox Litigation Services is interested in these subjects is that it is engaged in cross-border eDiscovery projects in China which inevitably run into the laws which are designed primarily to protect Chinese state secrets. The new privacy law, the snappily named Measures for the Punishment of Conduct Infringing the Rights and Interests of Consumers is, as its name implies, designed for the protection of individuals rather than companies or the state. It comes into effect on 15 March.

The range of information protected by the new law includes specific reference to “status of income and assets, health status, and consumption habits” in addition to the already wide range of personal data types covered by EU and other data protection laws.

Rachel Teisch’s article refers also to new rules which, although primarily intended as anti-terror legislation, would have much wider implications, some of which, Rachel Teisch says, would have the effect of jeopardising the security of the data. Since her article was published, the proposed laws have been postponed, not least because of strong representations from the US, and at a Presidential level. It seems that the third reading of the bill has been suspended for the moment

As you would perhaps expect from a company of this size, Xerox Litigation Services is increasingly writing across a wide range of subjects of importance to international corporations, covering many different aspects of information data protection and collection. You can sign up for email notifications from the article.

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Recommind webinar on 25 March: Total Visibility for eDisclosure Review

The latest release of Recommind’s Axcelerate 5 introduces interactive, customisable dashboards with visualise analytics about eDiscovery productivity and review.

The purpose is to bring what Recommind calls Business Intelligence to the eDisclosure process so that lawyers and their clients can easily keep up-to-date with what is happening across individual matters and overall caseloads.

This is the subject of a webinar to the presented by Neil Etheridge and David Nicholls of Recommind on 25th March at 5:00pm GMT. There is more information and a registration form here.

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FTI Technology paper: eDiscovery in Asia

FTI Technology has published a helpful paper called eDiscovery in Asia as a guide to the practical, legal and cultural issues which arise when eDiscovery demands (mainly but not always from the US) are made in Asia.

It can be tempting to assume that other regions are much the same as your own and that business practices in one place are broadly similar to those back home. There is nothing particularly anti-American in saying that people from the US seem taken aback to discover that what is important to them is ignored elsewhere and, conversely, that people from other countries look askance at US practices. This is particularly true of electronic discovery.

American lawyers are constantly surprised to discover that other people do not make a religion out of preservation and legal hold rules, that they are content with reasonable discovery rather than everything and more, and that we do not share the cultural assumption that our opponent is always trying to cheat. Non-US businesses on the receiving end of US discovery demands stand amazed at the extravagance and lack of compromise in US demands.

If the gulf seems big as between the US and Europe, it is very much bigger in the wide and culturally-diverse region collectively thought of as Asia. I come across this particularly in the context of cross-border eDiscovery, but it is relevant in a wider context.

FTI Technology has been working in AsiaPac for along time and has seen (and helped develop) best practices for handling the legal, regulatory and technical challenges which arise. FTI has now joined forces with Asian Legal Business Magazine to interview lawyers in Asia on the changes to eDiscovery practices in the region. The result is of interest and importance to multi-national corporations and law firms and to anyone else interested in comparative approaches to a common problem.

The result has been incorporated into a paper called eDiscovery in Asia: What are the emerging best practices for handling the legal, regulatory and technical challenges? which you can download from here.

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Nuix eDiscovery specialist training in London on 25-26 March

Nuix is offering eDiscovery specialist training courses in London on 25 and 26 March consisting of two days of specialised workflow training. Those who attend will work through a complete eDiscovery project, from ingestion ingestion of unstructured data through to delivery of the final data.

There is a discount offer open to those attending this course. Further details and registration form can be found here.

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Epiq Systems expands its data breach solutions

Although I come across Epiq Systems mainly in relation to its worldwide eDiscovery services, it offers a much wider range of integrated technology solutions for the legal profession, including a group specialising in data breach solutions.

Epiq has now appointed Brookes Taney as VP to lead the data breach solutions group with a mission to expand the breach response business which has already remediating hundreds of data breach cases in a range of industries.

There is a press release about this here.

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Asia Technology Summit in Hong Kong in March 2014

As part of my record of the year 2014, I am publishing belatedly the photograph sets from some of the events which I attended in 2014. Among them was the Asia Technology Summit in Hong Kong in March 2014. We have had the 2015 Legaltech Hong Kong already and my photographs of that will appear soon.

The photographs below show introductions from Henry Dicker of ALM and Barry Wong of the event sponsor Consilio. There are also photographs of an excellent panel on the use of technology in disputes which was moderated by Beth Patterson, Chief Legal Technology Services Officer at Allens in Sydney, and drew on the talents of Akiko Miyake of FTI Consulting and Jonathan Wong of Freshfields.

I did two sessions there,. The one which is illustrated was about the then pending eDiscovery practice direction for Hong Kong in which I was joined by the excellent Menachem Hasofer of Mayer Brown JSM. The other was about the cultural implications of introducing new technology to law firms in Asia.

The last group of photographs is of a session involving Marilyn Bier, CEO of ARMA, and Shane Jansz of Nuix. Continue reading

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IQPC Information Governance and eDiscovery Summit – pictures from 2014

As we get ready for the 10th Annual Information Governance and eDiscovery Summit, the biggest event in the London calendar, here are a few photographs from last year’s event, starting with a couple of Sanjay Bhandari of EY who was, as always, an effective and persuasive Chairman

If many of the pictures appear to have been shot in a dimly-lit nightclub, that is because this otherwise excellent venue had almost no lighting on the stage, a common complaint (of mine, anyway) at such venues. The reason why many of them are in black-and-white is that this was the only way of minimising the muddy effect of dim stage lighting.

Black-and-white actually proves rather effective for the shots near the top of the selection below of Allison Stanton, eDiscovery Counsel at the DoJ. If you wanted to convey the message that you do not mess with regulators, shooting her and her fellow panellists in black and white does it. Continue reading

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Video shows CYFOR at new heights

The long-standing UK eDiscovery and digital forensics provider formerly known as CY4OR has recently rebranded itself as CYFOR, with a new website which emphasises that it has long since moved beyond its roots as a digital forensics company and added eDisclosure and cybersecurity skills and technology, among other things, to its services.

CYFOR’s new corporate video draws attention to the journey that digital evidence takes, whether for criminal investigations or civil litigation, from identifying, preserving and collective it through to processing and review.

CYFOR is able to bring Nuix, Relativity and Clearwell to its engagements, allowing it to make use of whatever tools are best suited for the circumstances. Its video includes compliments from both Nuix and Relativity.

It also includes a helicopter, something I do not (yet) aspire to match in my own videos.

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LawTech NZ next week in Auckland with Nuix and FTI

LawTech NZ, the 3rd annual New Zealand Law and Technology Conference, is taking place in Auckland on 18 March.

LawTech NZ is run by Andrew King of eDiscovery Consulting and is the only event of note in the New Zealand eDiscovery calendar. Speakers include His Honour Judge David Harvey, Scott Gillard of FTI Consulting, Jo Sherman of EDT and strategic eDiscovery and data privacy consultant Nigel Murray.

Judge Harvey is also booked to speak at the IQPC Information Governance and eDiscovery Summit in London in May where he is participating in a panel which I am moderating. He and I will also coincide at a cross-border eDiscovery panel in Singapore in June, on which I will write shortly.

New Zealand is one of the few common law jurisdictions requiring eDiscovery which I have not visited. I very much hope to put that right one year.

The New Zealand event sponsors include Nuix and FTI Consulting. There is more information about the event here.

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Guidance Software webinar on 18 March: enhancing digital investigations with Belkasoft

Guidance Software is organising a webinar on Wednesday 18 March at 11:00am PST in conjunction with its EnCase App Central partner Belkasoft.

The webinar is called Enhancing Digital Investigations with Belkasoft, and covers evidence found in social media which can help make a case for digital investigators.

The presenters are Yuri Gubanov and Oleg Afonin of Belkasoft and Robert Bond of Guidance Software, and the webinar will cover how to find social media artefacts, identify those which matter for the investigation and find and analyse mobile app data.

There is more information and a registration form here.

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APT Search seeks a project manager in London

It is hard to keep up with the flow of interesting looking eDiscovery / eDisclosure posts which specialist recruiter APT Search is advertising. Amongst others, they have a post for a project manager based in London as part of the practice support group litigation department of a client.

The role include liaison, consulting and the provision of technical services to the company’s lawyers to help with identification, collection and production of documents for litigation or investigations.

There is more information about this role here.

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TAR-red with the same brush in the US and Ireland

The last few days have brought us significant court rulings in the US and in Dublin about the use of technology which is variously called predictive coding, technology-assisted review, computer-assisted review, and other names indicative of the joint application of human skill and technology to giving eDiscovery / eDisclosure which is simultaneously adequate and proportionate.

JudgePeckOne is US Magistrate Judge Andrew Peck’s Opinion in Rio Tinto PLC v Vale SA et al in the Southern District of New York, and the other is the judgment of Mr Justice Fullam in the High Court in Dublin in Irish Bank Resolution Corporation Ltd v Sean Quinn & Ors. I have read a vast amount of comment on the Rio Tinto decision, but none except newspaper reports on the Irish judgment. That may be because the judgment itself is not yet publicly available; it may be that no-one cares very much – two parties argue about how to give discovery, judge listens, applies some law and makes a ruling; so what?

Both judgments resulted in court approval of the use of the technology proposed by one party, subject to protocols which included descriptions of the tools and the processes to be used and the methods for validating the results.

What is the shortest way of getting this off my desk and (which is my real objective) of getting you to inform yourselves, by a demonstration or otherwise, of the capabilities of technology whose use has met with approval in court as diverse as New York and Dublin?

I should perhaps say two things at this point. One is that this article was originally headed “Technology-asisted review in as few words as possible”; that aspiration is not supported by the result, which runs to over 3,100 words; I regret none of them. Continue reading

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kCura London launch May 2014

kCura_100kCura held its Spring Launch party in London in May 2014. CEO Andrew Sieja took us through the new features of Relativity 8.2, demo stations allowed visual explanations, and there was a good party.

I wrote about it here. Below you will find some pictures of the event, including some of the view up-river as I crossed the Thames on my way home afterwards.

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Relativity Spring Launch Roadshow in London on 22 April

For the last two years, kCura has had a Spring Roadshow in London. This has had two primary purposes – a specific one in that new products have been announced there, and a more general one reflecting the importance of the UK market to kCura.

I wrote here about last year’s event and there are some photographs of it here.

This year’s event has expanded in both time and space. It is an all-day event, running from 9.00am to 10.00pm and including Relativity training, a user group meeting (already sold out), a keynote from CEO Andrew Sieja and a networking reception with solution stations and demos.

The space problem has been addressed by moving the event to 155 Bishopsgate. ILTA Insight was held here last year, the first time many of us had come across this extremely good new venue.

You can find the programme for the Relativity Spring Launch Roadshow here, including a registration form.

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Recommind eDiscovery Professionals Symposium in London on 16 March

Recommind is holding its inaugural London eDiscovery Professionals Symposium in London on 16 March. The programme, which you can see here, runs from tea at 15:30 through to drinks at 18:00, has a mixture of discussion about eDiscovery and Information Governance and updates on Recommind Axcelerate 5.3.

One of the main benefits of Axcelerate 5.3 is the visibility which Recommind calls Business Intelligence, that is, the idea that electronic discovery is not merely a technical function carried out ancillary to litigation or investigation but a key component of the management of the business. Much of Recommind’s new development is aimed at giving businesses a clearer picture of the information (not just the data) which they own and which they need to access either for reactive purposes (such as an eDiscovery demand) or for finding value in the data.

These objectives are amongst the part of the broad remit of the Information Governance Initiative and Bennett Borden, who is both a founder of the IGI and a partner and chair of the Information Governance and eDiscovery Group at Drinker Biddle & Reath LLP, will discuss this subject under the heading Achieving strategic advantage through visibility into information.

The closing session brings us back to electronic discovery / eDisclosure with a Q&A session called Litigation support – trends, challenges and changes for the year ahead. I am moderating this panel, whose members are Bennett Borden, Andrew Moir of Herbert Smith Freehils, Mark Simmons of Ashurst, and Bill Onwusah of Hogan Lovells.

The target audience for the symposium includes litigation and eDiscovery support professionals, eDiscovery partners and associates, and consultants involved in any aspect of eDiscovery or information governance.

The event is by invitation. You can telephone Amie Rogers on (020) 3627 6092, send an email to Amie.Rogers@Recommind.com
or use the simple registration form here.

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Hong Kong videos from the InnoXcell Big Data Symposium 2014

I have published photographs from the InnoXcell 2014 Big Data Symposium here and here. We also took the opportunity to do video interviews, some of which have lasting value.

Judge David Harvey of New Zealand talks about courts, lawyers and technology

 

Jennifer Qian of Epiq Systems talks in Mandarin about non-English eDiscovery in AsiaPac

 

Celeste Kemper of Epiq Systems discusses Hong Kong eDiscovery and non-English language discovery Continue reading

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InnoXcell conference in Hong Kong in April 2014 – Part 2

I have made my excuses in an earlier article for waiting so long to publish these photographs of an event which took place so many months ago. By this stage, their significance, if any, is historic, part of the record of a year already long gone. As with the previous batch (and, indeed, with pictures taken at many venues), the light on the stage was low and the room tainted with a yellow cast which is hard to eradicate.

The first group is of a panel moderated by Patrick Strong of FTI on the subject of eDiscovery points for in-house counsel to do with Big Data, privacy and related matters. The other panel members were Veeral Gosalia of FTI and Denis Brock of King & Wood Mallesons.

The next group is of Paul Taylor then of Consilio and Loren Harper of Simmons & Simmons.

Then is a panel led by Celeste Kemper and Nick Rich of Epiq Systems designed to demonstrate the power of Epiq’s audio eDiscovery tools. A team read transcripts in Mandarin and English and Epiq’s audio discovery technology handled it on the fly. Not everyone would be brave enough to try this live. It worked. It impressed.

We did video interviews with Epiq people which appear, with others, in a separate post.

The next block of pictures is of another FTI panel led by Patrick Strong with Amanda Beatty of King & Wood Mallesons and me. Our subject was the legal and practical aspects of collecting data from the ever-wider range of sources on which it might now be found. The large pile of metal and plastic in the floor beside me is the collection of web-connected devices which I carry. Multiply that by every relevant custodian and you have a complex data-collection problem on your hands (preceded, I hope, by an analysis of which of them is actually likely to carry data which is a) really relevant and b) proportionate to collect and process).

The final group of pictures is of a panel led by Celeste Kemper of Epiq Systems whose main subject was Hong Kong’s then-pending eDiscovery Practice Direction. The central panel member was Registrar Lung (who was shortly afterwards to deliver a judgment called Chinacast which made it clear that his court, at least, would make good use of the new Practice Direction in an appropriate case – I wrote about this, among other AsiaPac matters here). The other panel members were Dominic Wai of Baker & McKenzie and me. This was an interesting discussion, not least because I took a slightly different approach to that then taken by Registrar Lung – I say “then taken” because his Chinacast judgment was all that I might hope for in terms of judicial active management which was one of the things on which we expressed different views on the panel. Continue reading

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InnoXcell conference in Hong Kong in April 2014 Part 1

These photographs below were taken at the InnoXcell Big Data Symposium in Hong Kong in April 2014. It is, I appreciate, a little late to be publishing photographs of an event which took place so long ago. My excuse, if such be needed, is that I did a lot of events back to back in the early part of last year and accumulated more photographs and videos than I had time to deal with. We got the videos out reasonably quickly and I have now been spurred to do the photographs as part of a belated review of the year.

This page contains photographs of a dinner and discussions which took place on the evening before the conference. The main event was a judicial discussion, moderated by Menachem Hasofer of Mayer Brown JSM. The judges were Senior Assistant Registrar (as he then was) Yeong Zee Kin of Singapore, Judge David Harvey of Auckland in New Zealand, and Registrar Lung of Hong Kong.

A second panel included Laura Kibbe, now of Morgan Lewis, Sophia Yip of CBRE and John Witts of BNP.

The opening few pictures are of Jeffrey Teh of InnoXcell. InnoXcell is running a three-day event in Hong Kong this year from 14-16 April, called the Asia Symposium 2015. Continue reading

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EDRM webinar today: Getting Cloud Data from the New Big Three: Google, iCloud & MS Office 365

I have been travelling, and nearly missed the announcement of a webinar taking place today at 1:00pm Central with the title Getting Cloud Data from the New Big Three: Google, iCloud & MS Office 365 in which one of the speakers is Ian Campbell of iCONECT.

Data which is potentially discoverable now goes well beyond conventional email and Word documents created locally and sitting on corporate servers. Data is created and stored in the cloud – in Gmail or Office 365 for example – and now includes less conventional forms, including social media.

As well as Ian Campbell, the speakers in this webinar are Jason Pill of Phelps Dunbar and Andrew Wilson of Logikcull. The moderators are George Socha and Tom Gelbmann of EDRM.

There is more detail about this webinar here, together with registration information.

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AccessData presents an opportunity to test drive its products

AccessData is offering a test drive demo to allow prospective users the opportunity to try its full products for 20 days.

The idea is to allow people to evaluate features and benefits and to see how the products can help solve business problems.

The offer applies to MPE+ and (shortly) to FTK and MPE+ nField.

I am constantly urging people to sign up for web demos. This is an opportunity to go one step further and actually try the products out.

You can download them from here.

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Bill Belt of Deloitte talks about Corporate Knowledge Strategies

Corporate Knowledge Strategies, known as CKS, is a forum for communities of practice for those concerned with corporate information and the issues surrounding its creation, its safekeeping and its use.

I took part in an event which CKS ran New York at the beginning of February at which an audience mainly consisting of corporate in-house lawyers discussed information governance, knowledge loss prevention and related matters of growing importance to corporations.

Judge James Francis talked about the Dublin Warrant case and its impact on privacy and security issues, and the day closed with an eDialogue with judges, led by Anne Kershaw of CKS, Bill Belt of Deloitte, and me. The judges were Judge Douglas Arpert, Judge Frank Maas, Judge James Francis and former Judge Ron Hedges, who talked about the most common kinds of eDiscovery disputes, about proportionality and preservation and about the trends we might expect to see in 2015. Continue reading

Posted in Anne Kershaw, Bill Belt, CKS, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Information Governance | Leave a comment

LegalTech Hong Kong on 2 March – a video introduction

The third Legaltech Hong Kong takes place on 2 March at the JW Marriott in Hong Kong.

As always, the agenda is broad, running across a wide range of the challenges which face lawyers in the Asia-Pacific region.

I recently bumped into Peggy Wechsler and TJ Johnson of ILTA and asked them to tell me about the programme. The resulting video, prefaced with a short and enthusiastic introduction from me, appears below.

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CEIC agenda live online

CEIC 2015, run by Guidance Software, takes place at Caesars Palace in Las Vegas from 18 to 21 May. Its agenda is now live online and ready to be explored.

I will be there, talking about data protection, privacy and cross-border discovery issues.

You can find more information and registration details here.

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UBIC webinar on 18 February: cross-border issues in eDiscovery

UBIC is the sponsor of an EDRM / Apersee webinar called Cross-border issues in eDiscovery to be broadcast on 18 February, at 1:00pm Central / 7:00pm GMT.

The broad issues arising in this context are reasonably clear, deriving not merely from broad questions of conflict of laws, but from the clash between the very broad eDiscovery requirements of US courts and regulators and the restrictions placed on the collection of data by the EU and other jurisdictions. The webinar aims to address the practical issues which arise.


Paul Starrett
of UBIC is one of the panel members, along with Matthew Davis of Hogan Lovells and Brian Corbin of JPMorgan Chase. As usual with the EDRM webinars, the moderators are George Socha and Tom Gelbmann.

You can register to attend this webinar here.

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kCura webinar today: text analytics in action – finding the “killer patent”

kCura is participating in a webinar today, 17 February, called Text Analytics in Action: Finding the “Killer Patent”.

eDiscovery people tend to think of “discovery” purely as a component of disputes. The origin of the word in that context is, obviously, the procedure rules in most common law jurisdictions, and the term has been extended to cover regulatory investigations, internal investigations and other matters where one party is responding to a formal demand by another.

Some very sophisticated tools have been developed whose focus is on finding every last document in order to comply with the rules. Most of this technology, of course, is derived from search tools used in wider contexts. We can continue the circle further by using the advanced tools developed for defensible eDiscovery for other purposes.

The US Patent and Trademark Office has a very large public database. A webinar to be broadcast today considers the use of kCura’s text analytics tools to query this database for purposes which, whilst broadly legs in naturel, are not necessarily for a litigation or regulatory purpose.


Ryan Hynes
and Evan McAlpine of kCura are the main participants, and the webinar is moderated by Andy Moore, Publisher of KMWorld.

The webinar takes place at 11.00am PT / 2:00pm ET. You can find further information about this webinar here.

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Richard Susskind and the CJC recommend online dispute resolution – but can the MoJ deliver?

Professor Richard Susskind has been a long-time and eloquent proponent of alternative ways of settling disputes through the use of both technology and procedural amendments. His picture of arguments being resolved by people in fancy dress in wooden-walled courts has long been a persuasive argument for change even before the costs are taken into account.

Richardson Susskind is the the principal author of a report called Online Dispute Resolution for low-value civil claims from the Civil Justice Council recommending what Susskind calls “a radical and fundamental change in the way that our court system deals with low value civil claims”. The proposals, set out on a new website here, include three tiers – dispute avoidance / legal online evaluation, dispute containment / online facilitation, and dispute resolution / online judges. Technology comes into play both in the provision of interactive information services which will “help people diagnose their issues and identify the best way of resolving them” and in systems allowing papers to be received electronically by a judge with an option of telephone hearings, perhaps via Skype. The report advocates that pilots should be undertaken backed by consultation with consumer groups and the legal profession. Some changes to the civil procedure rules will probably be needed, not least the rules relating to disclosure of documents. Continue reading

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A post-LegalTech hiatus

You will be wondering, no doubt, at the near-silence on my part on my blogs and Twitter for the last two weeks or so. I don’t suppose you’d noticed at all in fact, but I will tell you anyway.

The first week is easily explained – I was at LegalTech in New York and rarely attempt to write anything when there are events to attend, things to do, and people to see. Having wifi in your room is a largely notional benefit when you get back to your room only briefly to sleep before the next meeting or foray to the exhibit floors.

I also did two panels, one for CKS and one for Nuix on which I will write in due course.

CKSPanel

NuixPanel

The silence since then is easily explained: my son William and I brought back 500 or so photographs and some videos. Last year, I deferred the processing of these things, with the result that I am still producing them months later. This time, I elected to deal with the media first. The photographs get culled and processed in Lightroom and Photoshop. The videos get linked up with their audio tracks and processed in Adobe Premier Pro; we have taken to topping and tailing them with an introduction from me and relevant pictures and text as in this one of Cicayda’s Roe Frazer, and it all takes time. Continue reading

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Xerox Litigation Services on the Big Data Analytics Track at LegalTech

Xerox Litigation Services is sponsoring and participating in two panels on the Big Data Analytics Track at LegalTech on Wednesday 4 February. Both are described on the press release here.

One, at 10.30 is called Legal’s new role in enterprise risk management: using “big data” analytics to identify hidden risks. The main theme here is that Big Data Analytics gives us the potential to identify sources of risk before they turn into problems, including potential violations of regulations as well as fraud.

Speakers include Bennett Borden of Drinker Biddle i& Reath and the Information Governance Initiative with speakers from Credit Suisse, Aviva Spectrum and Federal Retirement Thrift Investment Board. The discussion will be led by Rob Hellewell of Xerox Legal Services.

The second panel, at 12.15, is called Protecting employee and customer privacy in an area of big data monitoring.

This discussion will be led by Jason Baron of Drinker Biddle & Reath and it covers one of the subjects which Jason Baron has highlighted as being of increasing significance – he did so in a recent interview with me, for example, which will be published shortly.

The Internet of things has given rise to data collection mechanisms all around us. Each adds something to business and personal lives but, when aggregated, they pose a serious privacy risk. How do you reconcile their value with reasonable expectations of privacy?

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Roe Frazer of Cicayda interviewed by Chris Dale in Prague

Roe Frazer is CEO of Nashville-based eDiscovery
software company Cicayda. Cicayda is proud to be different from its competitors in everything from the development tools which it uses to its marketing style.

In this video, Roe Frazer draws on his experience as a former trial lawyer as well as his many years in legal software development and talks about the use of technology to get to the evidence which lawyers need to fight their cases. He also brings up the use of Cicayda for information governance.

Roe Frazer of Cicayda interviewed by Chris Dale in Prague from Chris Dale on Vimeo.

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iCONECT and Nuix Deliver Direct-to-Database Integration

Nuix and iCONECT have completed delivery of “Direct to Database” (D2D) integration between Nuix eDiscovery and iCONECT-XERA®.

Nuix users can now automatically create an iCONECT-XERA database and transfer extracted document data for review from within Nuix eDiscovery Workbench.

iCONECT-XERA databases are configured and populated at the touch of a button; users no longer need to leave the Nuix application to create and configure the database, populate the database, or append additional documents.

There is more information about this here.

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HP focuses on Information Governance and eDiscovery at LegalTech

HP has a series of panel sessions at LegalTech on the related themes of information governance and eDiscovery.

Titles include Information Management in the Age of the New AttorneyCounsel’s Secret Weapon in the Information Wars: Governance Strategies and Tactics and How to Take Advantage of the Cloud for eDiscovery.

In addition to an array of HP speakers, the speaker list includes Jason Baron of Drinker Biddle & Reath and the Information Governance Initiative and Johnny Lee of Grant Thornton.

 

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Recommind adds business intelligence to Axcelerate 5

Earlier generations of eDiscovery software focused on the mechanics of the eDiscovery task – the assimilation, culling, analysis, search and production of data.

Newer generations of software recognise that electronic discovery is not just a technical process nor merely a legal process but a business process, and that clients and their lawyers need to need more information about projects in order to make business decisions about them.

Recommind has added new functionality to Axcelerate 5 which gives visibility into the time, cost and quality of document review, showing everything from project expenses to staffing levels and performance, resource allocation and other factors fundamental to business decision-making.

There is a press release about the new version here. As David Horrigan of 451 Research says in the press release, industries use business intelligence to balance risk against cost. Quite apart from the wider business context, these are the elements of proportionality, part of the information needed to persuade an opponent or the court whether an exercise, or a phase of an exercise, is worth doing.

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iCONECT to talk about content visualisation at LegalTech

Iram Arras of iCONECT is to lead a presentation at LegalTech called Seeing is believing: machine learning powered content visualisation for the enterprise on 4 February at 3:45 PM.

The session will focus on how machine learning makes it possible to use visualisation to find, navigate, organise and discover large amounts of unstructured, textbased content where the ambition is not just to find documents but to do so efficiently.

The the other speakers are Ari Kaplan of Ari Kaplan Advisors, Mike Schubert, VP of Software Development at Ipro, and Mark Gianturco, VP of Engineering at Content Analyst.

There is more information about this event here.

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Huron Legal track at LegalTech: cost control and using analytics to proactively manage

Jason Baron has been quoted as saying that there is a race between growing data volumes and improvements in smart data analytics. He says that the volumes are winning despite the rate at which computer science is generating ever smarter analytical tools.

The subject is obviously of great significance to any company with large volumes of data (which, in practice, means any company) and particularly those who face eDiscovery and regulatory demands for information.

Huron Legal is sponsoring the Day 2 track at LegalTech called Cost control and using analytics to proactively manage. There are three sessions, Analytics and information governance, Analytics to enhance litigation and discovery strategy, and Analytics for progressive law department management.

Laurie Fischer, Nathalie Hofman and Jim Michalowicz are the speakers. There is more information about this track here.

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Epiq Systems announce global partnership with Contoural to deliver information governance solutions

Information governance is a label which covers a wide range of functions. The overarching concern is the mitigation of risk and cost whilst uncovering value in the ever-growing volumes of data kept by corporations.

Those with eDiscovery technology skills are better placed than most to apply their knowledge and their technology to information governance. There is more to it, of course, than merely pointing technology at the problem. The management of data requires people who are skilled in the search, categorisation and all the other components of data management with experience of developing processes and workflows and of adapting these to the needs of companies and organisations.

Sometimes, this is best achieved by bringing together the attributes of companies with different skills to deal with different parts of the problem. The most recent example of this is a global partnership between Epiq Systems and Contoural.

Epiq Systems is known worldwide for delivering integrated technology solutions for lawyers. Contoural is an independent provider of information governance consulting services. The partnership aims to bring these things together to offer an integrated solution.

The Epiq press release here sets out a range of issues which can be addressed by this partnership together with other information about the new partnership.

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Cicayda unifies all its applications into one platform

eDiscovery software company Cicayda has built up a set of applications designed for specific functions during the eDiscovery process. They each have distinctive names – fermata legal hold, drone intelligent search, staccato ECA and reprise review, applications whose functions can be deduced from their names.

Cicayda has now announced that it is unifying all these applications and its search engine into one platform, called Reprise which embraces its cloud-based review software and workflow engine, search and analytics and other functions. Cicayda emphasises that it has developed all these tools itself and that there are no extra charges for the advanced analytics.

There is more information on in the press release here. The new version will be available for demonstration at LegalTech.

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Why I go to LegalTech

This is personal – it is about what I go to LegalTech for. As I make clear below, if you are a potential buyer of software, then LegalTech is the perfect place to see demos of everything relevant under one roof, and I positively recommend doing so. It is not what I go for.

You will have noticed increasing references to something called “LegalTech” in what I have been writing. Most of that has been on my eDiscovery / eDisclosure news blog chrisdaleoxford.co.uk, whose links appear in my periodic cross-reference posts on this site. If you are new here, it is not always like that. A more balanced diet will appear when LegalTech is over.

Those who are not diehard eDiscovery / eDisclosure people will have gathered that LegalTech is some kind of trade show. It is in fact the largest eDiscovery show in the world, taking place at the beginning of each February at the Hilton on 6th Avenue in New York, combining educational sessions with a vast exhibit hall with more social opportunities than you can fit into a month, all crammed into three days.

6thAvenue

6th Avenue. The Hilton is the first building on the right

The spate of announcements which I have been manfully trying to capture are part of the blizzard of publicity which eDiscovery software and services providers throw out at this time of year, to promote a new enhancement, service or relationship.

I should make it clear that I wholly understand this. If you have the largest gathering in the world of eDiscovery people, in what is possibly the most litigious city in the world, you must be there or be forgotten. There is no better opportunity in the year to meet up with people, to cement existing relationships and to make new ones, and to sniff the eDiscovery air.

I will come below to a couple of cautionary articles written by others, but first, why do I go to LegalTech each year? I have been every year since 2007, so this will be my ninth LegalTech. Continue reading

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ZyLAB announces a new Channel Partner Program

ZyLAB, which specialises in eDiscovery and information governance solutions, has launched a Channel Partner Program and is looking for technology companies, systems integrators and service providers to help bring ZyLAB’s eDiscovery production solution to its end customers in the US.

There is more information about this here.

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The Relativity experience at LegalTech

kCura is organising or taking part in a series of events at LegalTech, covering remediation in information governance, working whilst mobile using Relativity Binders and the use of Relativity Analytics.

kCura is also offering the opportunity to register for exams and educational sessions, and Relativity Ecosystem partners will be available to demonstrate their applications and integration is built on Relativity.

You can read more about this here.

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Show the human side of your business with video – examples from EY

I rather like some videos released recently by EY aimed primarily at encouraging people to join, and aspire to partnership at, EY. You can find them here.

I watched the one about Sanjay Bhandari, a partner in the fraud investigation and dispute services, partly because I know him (it was his tweet which drew my attention to the videos), and partly because his route to partnership is an unconventional one which should give encouragement to anyone, whatever their background.

I have my own interests in the use of video as a way of helping businesses, and particularly professional services businesses, to emphasise the human side of their services. Sanjay’s video is largely set in his office, but it includes snippets of his personal story and his home life which, to my eye, matter when a company is trying to make itself stand out in a competitive field.

You won’t like to admit this, but many businesses viewed from the outside (that is, from the viewpoint of prospective clients or customers) look very much the same, distinguished only by corporate branding. If you are going to place your commercial trust in a person, as opposed to merely to a product, then this matters.

We are in the media world now, and all those rolling polysyllables strung together by marketing departments no longer suffice to persuade clients to bring you their business. The recruitment point made by the EY videos is equally important, and the story of someone who went from Sanjay’s background (watch the video to see what I mean), to partnership at a major international firm is a story worth telling – and the “telling” is much better done by video than by yet more words on paper.

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Riverview Law video: Cometh the hour

I offer you this video from Riverview Law for two reasons: the first is the reason for which they made it – to draw attention to their own willingness to offer fixed price fees and other alternative fee arrangements to their clients.

They do it amusingly, and in a way which will cause a stab of self recognition amongst those who can’t think beyond the billable hour (that “think beyond” bit is important – there are many circumstances in which hours remain the only sensible measure of input; perhaps not when a big client is overtly seeking something different, as in this video)

The second reason for bringing it to your attention is for the first-class use of video as a marketing medium. I am not suggesting that it is necessary to have mini-dramas with actors, but it is an inventive use of the medium.

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Nuix brings its early case assessment tools to Lighthouse eDiscovery

Every month seems to bring us a new example of an eDiscovery services provider integrating Nuix into its client offerings. The most recent of these is Lighthouse eDiscovery which has incorporated Nuix Web Review and Analytics into Lighthouse ECA.

Lighthouse is already an established user of the Nuix tools. The new arrangement extends the collaboration between the two companies to enhance cooperation between users, to give fast access to key information and analytics, and to reduce the volume of data and thus the cost of review.

There is more information about this here.

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iCONECT offers transcript management with Opus 2 Magnum

iCONECT has announced an integration between its iCONECT-XERA document review platform and Opus 2 Magnum which makes Magnum transcripts available from within iCONECT-XERA via a common client interface.

There is more information about this here.

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Global bank selects Resolution1 for cyber incident response

Resolution1 is the cybersecurity specialist company recently spun out of AccessData.

It has recently published a paper about the use of its cyber incident response by a UK-based global bank.

All cyber attacks have an adverse effect on the organisation and, often, on individuals and other businesses whose personal or commercial information is compromised by the attack. Cyber attacks on banks have a wider effect. The introduction to the Resolution1 paper quotes the British Banking Association as saying:


“If publicized, network security breaches can affect share prices, cause irreparable reputational damage and impact on the stability of the wider financial market.”

The paper shows how the bank uses automation and remote endpoint remediation to reduce incident response times from 10 days to 5 hours. It sets out the requirements in the RFI and explains how Resolution1 Security met the requirements, working with the bank’s security staff to develop further processes. Protection was obviously an end in itself, but the installation achieved the important secondary effect of saving money.

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Consilio is looking for a marketing manager based in Washington

Consilio, which has a global presence as a provider of eDiscovery services, is looking for a marketing manager based in Washington DC.

There is a very full job description here with a list of primary duties and responsibilities, together with contact details.

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AccessData at LegalTech: FTK+Summation – the convergence of digital investigations, big data, mobile data, and eDiscovery

AccessData is leading a discussion at LegalTech on 3 February at 1:00pm about the conjoined abilities of its forensic analysis and collection tools in FTK and its review and related tools in Summation.

In addition to these technical matters, the discussion will cover case law and trends relating to the use of computer forensics and civil litigation.

The speakers are Scott Lefton, senior sales engineer, and Keith Schrodt, Director of Product Marketing and Strategy at AccessData.

There is more information and access to registration form here.

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The run-up to LegalTech 2015 in New York

Apart from the big story of last week, Microsoft’s acquisition of Equivio, most of my output in the last few days has been about events planned for LegalTech 2015 which takes place in New York from 3 to 5 February. By coincidence or otherwise, the number of other announcements steps up at the beginning of the year and there are posts about webinars, acquisitions and product releases.

You can find all these from the links below, together with two others which has nothing directly to do with eDiscovery / eDisclosure but which are interesting anyway. The content changes during a typical day.

What appears below is the eDiscovery tab on my News aggregator site and are either to articles by me or to other information about eDiscovery. If you go to the site itself, you will find other tabs, including one called Justice which is mainly about the damaging follies of Justice Minister Chris Grayling, and one headed CPR which links mainly to articles on Gordon Exall’s Civil Litigation Brief.

Not all the tabs are work-related – there is one with some of my photographs on it, one about Oxford, and one which is a kind of scrapbook for anything I come across which interests me. The Home page pulls all these things together.

[The link to the eDiscovery News page originally appearing below has been moved to a later post]

Home

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Epiq Systems, Equivio, FTI Technology, Guidance Software, Huron Legal, iCONECT, LegalTech, Navigant, Nuix, Recommind, Relativity, RingTail, ZyLAB | Leave a comment

Chad McManamy appointed Vice President of eDiscovery at Guidance Software

Here is an appointment I am pleased to see. Chad McManamy, Assistant General Counsel at Guidance Software, has been appointed Vice President of eDiscovery at the company.

According to the press release, Chad McManamy will the “voice of the customer” in influencing product development internally, as well as continuing his outward-facing role bringing the lawyers, judges and other end users of the discovery process together with those who make the tools which enable this.

I have known Chad for many years in my role as a speaker on behalf of Guidance Software on panels and in webinars, and as a long-serving member of Guidance Software’s Strategic Advisory Board

The press release sets out the ambitions of which Chad McManamy and Guidance Software have for his role. I very much look forward to working with him, not least at CEIC 2015 in Las Vegas in May.

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APT Search seeking junior project manager for a London post

An eDiscovery consultancy company with international reach is looking for a junior project manager in London.

APT Search, which specialises in eDiscovery / eDisclosure jobs, is looking for someone with ambitions to move into project management.

The qualifications include existing knowledge of document review and eDiscovery / eDisclosure processes together with a knowledge of various industry tools.

There is more information here.

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Recommind Roundup: LegalTech panels and a webinar

The run-up to LegalTech 2015 in New York generates a flood of eDiscovery-related events and notices, making it necessary for me to aggregate a few of them.

Recommind has published a list of the sessions in which it is involved at LegalTech on Wednesday 4 February. The focus is very much on the user – user-centric mobile, social, and cloud world is the first one, followed by user-defined predictive coding for fact finding a prioritised review. The last one, user-centric protocols for advanced review, moderated by Phil Favro, includes US Magistrate Judge James Francis among its panellists.

Recommind is also participating in a webinar taking place on 28 January at 1:00pm EST. Its title is the 2014 eDiscovery cases you need to know: lessons and best practices from a pivotal year.

Topics to be covered include preservation and production of data stored in the cloud and on mobile devices, how to develop a predictive coding process, and the effect of privacy rights, lawyer client privilege and the work product doctrine.


Phil Favro
moderates, and the panel includes US Magistrate Judge Xavier Rodriguez. You can find more information and registration details here.

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Panels at LegalTech in FTI Technology’s Actionable eDiscovery Learning series

FTI Technology is running a series of panels at LegalTech under the heading Actionable eDiscovery Learning.

Sessions include one on case studies of what is working in eDiscovery today, one on the forces shaping the legal landscape and a third on optimising information governance for easier eDiscovery.

Speakers include Ari Kaplan, US Magistrate Judge John Facciola and David Horrigan of 451 Research.

There is more information here.

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Information Governance Initiative Boot Camp, in New York on 2 February

The Information Governance Initiative is running an IGI Boot Camp at the Cardozo Law School on Monday 2 February from 9.00am to 4.00pm. It is run in parallel with the Cardozo Data Law Initiative event of which I have already written

You can read the agendas for both of them here.

It is expecting to gather a diverse group from law firms, corporations and vendors for a day of interactive sessions on how to get started with information governance.

The matters to be discussed include identifying which parts of an organisation should be involved in IG, what projects they deal with, how to form an IG steering committee and the development of an IT project.

You can find further details, including registration information, here.

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Nigel Murray to host 9th Commonwealth Brunch before LegalTech

Independent eDiscovery and privacy consultant Nigel Murray has organised the 9th Commonwealth Brunch in New York on the Sunday before LegalTech.

The catchment is wider than is implied by the word “Commonwealth”. The event is for anyone who is in New York for LegalTech and who is not a US citizen working in the US. They can come from corporations, law firms, providers, consultants and competitors.

The Brunch is to be held, as it always used to be, at the Tavern on the Green in Central Park. That has been closed for refurbishment for a while but has now reopened. They do a fixed price menu at $45 per person. The meeting time is 10.30am at the Tavern on the Green. Everyone pays their own way.

If you want to come, contact Nigel Murray at Nigel@nigelmurray.net

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Microsoft acquires Equivio for its machine learning eDiscovery, IG and compliance technology

We learned yesterday that Microsoft has acquired Equivio, confirming a rumour which started circulating during last year. An article on the Microsoft blog says:

“We are making this acquisition to help our customers tackle the legal and compliance challenges inherent in managing large quantities of email and documents”.

Microsoft has contributed more than any other company to the world’s ability to create user content. It is fitting that it should want to own some of the best technology that exists for managing that content, not just for eDiscovery and compliance purposes, but for extracting value from it. The reference in the Microsoft blog post to Office 365 is as significant a pointer as you could want as to Microsoft’s intentions.

You can judge the importance of Equivio by the impact when rumours first started circulating about this acquisition, with long articles devoted to the implications. I kept my trap shut, preferring to avoid speculation on a subject where I had no more hard information than anyone else.

The subject kept recurring in private conversations, however – it came up in a discussion with an eDiscovery provider as recently as last week in which it was an unspoken given that the Microsoft deal would happen at some point. I sometimes write predictions on scraps of paper, date them and stick them in a drawer; I did not do that on this occasion but, if I had, I would have anticipated an announcement before LegalTech. That would have been a Holmesian “dog that didn’t bark” conclusion: Equivio always announces something new at LegalTech – it was Themes last year, and Zoom the year before that; I have had no hint of any such product release, so something else must be coming, and it wasn’t hard to guess what.

As you will have seen, I have been trying to write up all the eDiscovery news to clear my decks before LegalTech. I was a bit stuck with Equivio, because there was nothing new to say, and I got no further than writing a heading about their extremely good series of predictive coding webinars from last year. One concludes from Microsoft’s announcement and from Equivio’s references in their own announcement to “our user community” and to the continuing support for customers and partners, that these webinars remain relevant – you will find them here.

I recall a discussion with someone at the dreadful LegalTech of 2009 – “dreadful” because eDiscovery companies were failing (one closed down the day before it was due to give a LegalTech presentation), and the main activity at the show seemed to be the hawking around of CVs. My companion expressed concern about Equivio, then only five years old and very much smaller than many others in the industry. Equivio will be fine, I said, with its lean development and sales teams, strong work ethic, and already a range of inventive solutions which were solving real problems. There were many other software companies, those with me-too and catch-up solutions and with big teams to support, which would suffer before Equivio, I said. That analysis proved correct.

There was a nice tweet yesterday from iCONECT, one of Equivio’s technology partners. “Good things happen to good people”, it read. I agree, and I look forward to hearing more about the proposed role of Equivio under its new and very broad umbrella.

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Cardozo mini-conference on Big Data and its legal impacts in New York on 2 February

Patrick Burke, eDiscovery counsel at Reed Smith, is also Executive Director of the Cardozo Data Law Initiative and a member of Cardozo’s adjunct faculty.

The CDLI is running a mini-conference on Monday 2 February at the Cardozo Law School with the title “Big Data and its legal impacts” as part of what now seems to be known as “LegalTech Week” (LegalTech itself runs from Tuesday to Thursday).

The Cardozo event runs from 11.00am to 3.00pm on Monday. The panel subjects and speakers are listed on the registration form here.

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Brush up iCONECT XERA skills with free training at LegalTech

iCONECT is organising live power user training on iCONECT-XERA on 4 February in New York, convenient for those who are attending LegalTech.

Whether you’re an iCONECT-XERA expert, or a novice just getting your feet wet, find out what’s new with XERA, network with iCONECT experts and share best practices.

There is more information, including registration details, here.

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ZyLAB session at LegalTech: top privacy concerns for 2015

Mary Mack, Enterprise Technology Counsel at ZyLAB, will moderate a panel at LegalTech 2015 called Top Privacy Concerns for 2015.

The list of topics to be covered includes wearables, cloud, mobile, online behaviour advertising, the right to be forgotten, expungement, service provider and law firm obligations, cross border data transfers, the EU Privacy Directive, and state and international regulation and enforcement – as comprehensive list as one could hope for in a single session.

Mary Mack will be joined by Lisa Sotto, Partner at Hunton and Williams, Amanda Kosowsky, VP Assistant General Counsel and Discovery Management of JPMorgan Chase and others.

Here is a link to the meeting request form for this session. Put “Privacy Panel” in the box at the bottom of the form.

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Nuix sessions at LegalTech: Information Governance today, tomorrow and beyond

Nuix is participating in three sessions relating to information governance at LegalTech New York. I am a panel member for one of them.

The track theme is Information Governance today, tomorrow and beyond. The track and its three sessions are summarised here. They are Information governance in the nowThe convergence of information security and IG and Information governance 2020 and beyond.

Ours is, I think, the last panel of the whole three-day event. Its agenda heading allows us to speculate about the future of a discipline – a wide-ranging set of disciplines, in fact – which together represent the only way we can hope to bring information under control over the next five years.

Smarter analytics develop apace, but the volumes of data, and the risk, costs and value in that data continues to outstrip technology development. It is not, of course, merely a matter of turning machines loose on the problem; we need processes and workflows, and for that we need people. Many of those will the dome-headed scientists; most, however, will be practical people, perhaps from other disciplines, capable of identifying achievable objectives and moving towards them aided by yet further technological developments.

My fellow panellists at this session are Leigh Isaacs, Director of Records and Information Governance at Orrick, Herrington and Sutcliffe LLP, Barclay Blair, of The Information Governance Initiative and ViaLumina LLC, and Alison North of AN Information Ltd. The moderator is Julie Colgan, Head of Information Governance Solutions at Nuix.

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UBIC’s Lit i View Email Auditor helps major Japanese manufacturers anticipate trouble

I have written before about UBIC’s Lit i View Email Auditor whose function is to help corporations identify suspicious or inappropriate email traffic before it can give rise to damaging investigations.

Email Auditor subjects messages to anticipatory routine auditing. It includes an automated learning process which uses UBIC’s AI-based Virtual Data Scientist software to improve selection accuracy as time goes by.

One of the risks faced by Japanese companies, as elsewhere, is investigations by regulators into apparent cartels and similar compliance issues. Email Auditor helps with this as well as with corporate fraud and theft of intellectual property.

There is a press release about this here. A further press release relates to the new Japanese patent which UBIC has been granted in relation to its Email Auditing system.

Whilst on the subject of UBIC, it has been applying its Virtual Data Scientist technology to the valuation of intellectual property in a joint project with Toyota Technical Development. The aim is to learn from decisions made by those involved in the development and management of intellectual property, reducing the time spent on evaluation and increasing efficiency.

There is a press release about this here.

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Information governance and compliance services from FTI Technology

FTI Technology has launched a new service which combines its technology with its skills to help organisations manage ever-growing volumes of data.

There is a press release about this here and the relevant page on the FTI Technology website is here.

I spoke to Jake Frazier, Senior Managing Director at FTI Consulting (there is a press release about him here), to find out more about this. There are, he said, many companies offering technology solutions for the management of deletion, migration and categorisation of information, but very few have the skill and experience to do it in a way which supports defensibility of the activities. It is one thing to find and delete classes of documents, to move them from one place to another or to re-categorise them, but it is quite another to be willing to give affidavits or to defend the processes before a court or a regulator. The new service from FTI brings both of these strands together.

Information governance is a broad topic covering many activities and requiring a wide range of skills. There is, Jake Frazier says, “a lot of hype” in the market about something where it is hard to make concrete predictions or to get tangible results. Companies name a Chief Information Officer and only then start to ask what the tasks are. They often hire a big consulting firm which produces a large document saying not much more than that the company should comply with its document retention policy. Many of them offer “too much strategy and not enough execution”. FTI’s new service aims to solve that problem.

As well as lacking precise aims, many IT projects have long timelines; budget priorities change and people move from the company or acquire different responsibilities and it becomes hard to protect the budget.

FTI’s goal is to pick things which it knows works and which will quickly generate tangible benefit. If a company is quickly able to say that a particular type of search, which once took seventeen days now takes four, or that it got rid of a specified quantity of backup tapes, then this is a tangible result with an identifiable saving.

Jake Frazier said that a many IG tasks are “always important but never urgent”. Getting rid of backup tapes and migration from an old email archive are good examples of activities which can quickly show results.

Legal departments are stuck with big collections of tapes, often created on machines which no longer exist or have email archives on systems which are going out of support, have reached end of life, or have inadequate search facilities. They would, perhaps, like to move the whole lot to the cloud, but get a high quotation with long timescales and the planned project dies.

The FTI approach is to look at retention policies, to do some sampling and to make selective extracts in consultation with legal and other relevant departments. They document the exercise in a way which enables them to help courts or regulators understand what has been done – and to do any eDiscovery matters which come up on the processes in hand.

Increasingly, this work comes up because companies are concerned about violations of data protection or privacy laws, something that was first driven from Europe but is now spreading to the US. It may be, for example, that the company is holding a great deal of data which should have been disposed of as a matter of data protection / privacy law or which is sitting in the wrong jurisdiction.

The main driver in the US is the increasing number of data breaches. A common element across many multinational organisations is that they have no one to bridge the gap internally and have differences of philosophy as well as of law and jurisdiction. FTI has teams in data centres in many jurisdictions, making them well-equipped to resolve this issues of this kind.

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eDialogue with Judges panel on 2 February in NYC as part of CKS New York Forum

LegalTech New York 2015 starts on Tuesday 3 February. I am involved in one of the last panels of the event, part of the Nuix Information Governance Track which I will write about shortly. I am also taking part in a panel before LegalTech even begins.

That is with Corporate Knowledge Strategies – CKS – which is running its 2015 NYC Forum from 8.00am to 6:30pm in the Deloitte NYC Conference Center at 30 Rockefeller Plaza.

There is information, including registration information, here, and the Agenda is here

The day includes, at 3.00pm, an eDialogue with Judges, involving members’ questions and hypothetical scenarios. The judges on this panel are Hon. Judge Douglas Arpert, Hon. Judge Frank Maas, Hon. Judge James Francis, Hon. Judge Ron Hedges and Hon. Judge Holly Fitzsimmons.

The facilitators are Anne Kershaw of Knowledge Strategy Solutions, Bill Belt of Deloitte, and me.

Before that is another topic which should be interesting. Hon. Judge James Francis will be talking about the Dublin Warrant case at 2.15pm, a subject of importance to anyone involved in discovery across borders. It was, of course, Judge Francis who made the original order requiring Microsoft to hand over emails. Bill Belt will facilitate that discussion.

CKS has done a series of videos in which its members explain what value they get out of CKS which you can find here.

I very much look forward to participating in this event.

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Eddie Sheehy of Nuix introduces the new eDiscovery features in Nuix 6

In this short video, Eddie Sheehy, CEO of Nuix, describes the new eDiscovery features to be found in Nuix 6.

Apart from an understandable emphasis on the raw speed of the Nuix engine, Eddie Sheehy focuses on the integration between Nuix Director and Nuix Web Review and Analytics. Between them, they offer users, not least managed service providers, an overview of the matters in their care.

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AccessData MPE+ nFIELD: Fast mobile data acquisitions

A very high percentage of the potentially discoverable data created by organisations now lies in mobile devices, a fact which seems to have escaped the attention of many lawyers. It becomes increasingly important to understand how to recover data from phones, tablets and other devices, and to do so quickly and proportionately.

This is a field in which AccessData has both the tools and the relevant expertise. An article on the AccessData website explains how this is done using AccessData’s Mobile Phone Examiner plus (MPE+) nFIELD.

The starting point, of course, is to think through whether your discovery obligations include the examination of such devices.

The article is backed by a video which you see below.

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kCura: easy workflow wins with text analytics

I missed the recent kCura webinar about the use of text analytics in discovery. It was called Quick wins in analytics, and will doubtless be re-run at some point.

The subject was, apparently, the highest-rated session at kCura’s recent Relativity Fest and covered specific analytics topics like clustering for quick batching, keyword expansion, and concept search. Fortunately, the points which were discussed are covered in some detail in a blog post by kCura’s Constantine Pappas called Easy workflow wins with text analytics.

Whilst aimed primarily at existing Relativity users, I offer it to you because it helps to explain to others, including those who not familiar with the concept, what text analytics involves in eDiscovery. The world has moved on in the last two to three years, and lawyers trying to extract the relevant and important documents from ever-increasing volumes now have a wide range of analytical tools to help them.

The article gives you some idea of the range of functions offered by such tools and might encourage you to arrange a demonstration.

On the subject of kCura, there is a meeting of the New York Relativity User Group on 20 January about review strategies. You can register for that event here
.

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Choosing a document review platform – Lateral Data Viewpoint and iCONECT XERA

A recent two-part article on the Above The Law site is called How to choose the best document review platform, written by Jeff Benyon.

As it happens, the article relies on its for its examples and illustrations on the review platforms of two of my sponsors who are unrelated to each other and who compete with each other. Whilst I generally try and avoid this – it is not my business to offer comparative reviews and, besides, it gives me an issue in deciding how to display logos – the articles are helpful to those who feel they ought to understand what document review involves but do not like to ask. The articles are also illustrated by screenshots from the products concerned.

The first article draws on Viewpoint from Lateral Data (a Xerox company) for its examples.

The second article uses iCONECT-XERA as the source of its illustrations.

Between them, they relate the task to be performed to the functionality offered by each application. The illustrations include explanations about the sort of costs which lawyers might expect to incur in conducting these exercises.

Although the examples used are of US review exercises, the principles are equally applicable elsewhere.

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New version of TeCSA eDisclosure Protocol and the revival of LiST

It is a year since TeCSA – the Technology and Construction Solicitors Association – launched its eDisclosure Protocol and Guidelines. I was involved at the beginning, as moderator of a well-attended pre-launch training day, and am a member of the eDisclosure Working Party.

The eDisclosure Protocol and Guidelines have both reflected and driven best practice in the Technology and Construction Court and, anecdotally, beyond the TCC in other courts.

There is a dedicated eDisclosure page on the TeCSA website on which you can find the eDisclosure Protocol Pack containing an introduction, the eDisclosure Protocol, Guidelines to the eDisclosure Protocol, and a Guide to eDisclosure, as well as sub-sections on costs budgeting, pre-action protocols and other matters of relevance and importance to all those engaged in litigation and other forms of dispute resolution such as arbitration and mediation.

This remains a work in progress, intended to evolve to reflect user experience as well as developments in rules and case law. Steven Williams of Nabarro is head of TeCSA’s eDisclosure Working Party and will be glad to receive any suggestions as to future changes. We meet shortly to discuss how best to carry the educational and training message forward. Continue reading

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Huron Consulting buys Sky Analytics to reinforce legal cost management

Huron Consulting Group has announced that it will acquire legal analytics and software company Sky Analytics to support and enhance the services which Huron Legal provides to clients.

Sky Analytics has a suite of web-based solutions whose purpose is to help enhance legal teams’ ability to keep an eye on what they are spending on outside lawyers, vendors and other projects.

The tools do more than merely track expense. One feature which sounds particularly interesting is the ability to benchmark costs to help identify which outside provider (such as a law firm) is handling a specific type of matter more efficiently than others.

There is more to this than merely comparing two law firms. Increasingly, the components of legal services are offered by companies which are not law firms and which do not give legal advice, but which support the legal function. GCs are wanting – and getting – more granular information about matters which enables them to see which component of a matter (such as eDisclosure / eDiscovery) might be a candidate for outsourcing.

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Recommind article: analytics and competence versus volumes in eDiscovery in 2015

Phil Favro of Recommind has published a summary on the Recommind blog of the issues facing lawyers in 2015 and calls on various experts to give their views.

Unsurprisingly, the growth in data volumes is seen as the biggest problem – Jason Baron is quoted as saying “[i]t’s an arms race between data and smarter analytics, and the data may be winning!

This rather depressing conclusion is echoed by others interviewed for the article. Robert Owen is quoted as saying…


“Systemic collapse is where we are headed as long as imposing discovery burdens on defendants is cost-free and data volumes and complexities continue to grow.”

…and the theme of over-preservation is echoed by others. Judge Derek Pullan says that the system is “collapsing under its own weight”.

Growth in data volumes is not unique to the US, although it is possible that Americans create data bigger and faster than everyone else. The problem which puzzles the rest of the world is why the US amplifies the problem by seeming to require the preservation and hold of so much data in anticipation of litigation. It is not just litigation, of course – US regulators are equally to blame for the requirement to keep and make accessible vast volumes of data against the possibility that it might just be relevant one day.

When you add the fact that the word “relevant” seems to have nothing to do with the question whether the data is likely to be determinative of any issue which actually matters, you can easily see this requirement as a train which is gathering speed but which has no one at the controls.

There is a general consensus (which is implied from most conversations on the topic even if it is not expressed) that the proposed amendments to the Federal Rules of Civil Procedure will do little to reduce this burden – Kelly Twigger, interviewed in another Recommind article, suggests that the changes are “mostly cosmetic” with the exception of Rule 37(e) relating to the ability to get sanctions for negligent destruction of ESI. She says, with understandable cynicism, that..

“the biggest takeaway from the new amendments may ultimately be that you better make sure you have someone who understands them and can advise your business on them before there is trouble.”

So it seems that the requirement to manage – to keep, and make accessible – these ever-growing volumes of data is a given. Like the weather, no one appears able to control it. Meanwhile, litigation and the duty to comply with regulatory requirements becomes a major head of expense, drawing off money which could be invested in American businesses.

What answers do Recommind’s interviewees offer? Better use of technology such as auto-classification tools, both in the context of eDiscovery and pre-emptively, provide part of the answer. Lawyers can use “advanced analytics, predictive coding, and other machine learning tools to save time, reduce costs, and get ‘to the facts 10 times faster than [an] opponent'”.

The competence of lawyers in the use of this technology comes up, in the prudent commissioning of tools and services and in their use, but also (a recurring theme of mine) in recognising that new sources of data – new devices, used differently and for a wider range of purposes – are major potential sources of discoverable data.

These are all common themes elsewhere. The rest of us must be thankful, I suppose, that the US has imposed on itself such a major volume problem that it nurtures both the tools to deal with them and thoughtful people like those who contributed to Phil Favro’s article.

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Cicayda: encouragement to innovators, thinkers, and entrepreneurs in Roe Frazer’s 2015 eDiscovery predictions

As you would expect from the CEO of a company which set out to challenge eDiscovery norms, the 2015 eDiscovery predictions from Cicayda CEO Roe Frazer include a few which are intended to provoke. Indeed, he opens by accepting that the word “prediction” might be a bit strong, because some of them “are intended to be encouragement to innovators, thinkers, and entrepreneurs.”

Most of it, however, is spot-on. He would be a bit disappointed if I agreed with everything he says.

His first prediction, for example, about predictive coding, whilst correct in its closing assertion that “we will see real battles over predictive coding in 2015″, recites some of the difficulties inherent in the use of what is still relatively new technology.  Predictive coding has passed the early-adoption phase, for US courts well as users. Its most ardent advocates would not say that it is right for every case; an increasing number of lawyers are using it for an increasing number of cases. The real message on functionality and defensibility, as well as on Roe Frazer’s later point about the costs of using eDiscovery software, is that lawyers must become familiar with all of them and adept at ferreting out the true costs of using them.

Roe Frazer would say of Cicayda that it is extremely easy to identify the costs of using Cicayda’s products because the pricing model is straightforward and transparent. Have a look at the technology for yourself: Cicayda does a good online demo, as do some of the companies offering predictive coding. Half an afternoon watching first one demo and then the other will help you identify the main differences, and the similarities, between them – not just the technology, but the pricing models and what they really mean. That approach would also allow you to compare another provider’s predictive coding (itself a term which describes a range of approaches) with Cicayda’s analytical tools.

The other of Roe Frazer’s points on which I take a different view is his Prediction 6 and the assertion that “No one cares about costs shifting if it gets you the documents you need to win your case”. I come from a jurisdiction in which costs shifting is the norm, and there is no greater control on extravagant and unnecessary eDiscovery demands than the possibility that the aggressor might end up picking up all the costs of both sides in respect of the unwarranted demand (or, indeed, of the unwarranted challenge to a demand).

Roe Frazer is right, of course, to point out that arguments about costs shifting will speedily move to a close focus on the components of the eDiscovery costs. “Why did you choose this tool when that one would have done the job for a fraction of the price?” speedily becomes a compelling one when opponents and the court have the right to enquire into what is being spent and why. Even better is the idea that one party can challenge another’s approach before the costs are incurred, as the budget regime in the UK requires. That, more than anything, will expose the benefits of clear and transparent eDiscovery costs because a party will be stuck (at least as regards recoverability) with the sums in the budget.

While the court may limit costs on other grounds, costs shifting provides the best reason for that anticipatory analysis of scope, method and prospective expense. This is an area on which one can take different views without falling out, particularly when there are significant differences between our respective jurisdictions.

It is hard to disagree with most of the rest of Roe Frazer’s predictions. He says (Prediction 2) that companies will begin to govern their data proactively, going beyond mere document destruction and into anticipatory use of technology to identify problems before they give rise to litigation or a regulator’s gaze.

The Internet of Things (Prediction 3) and social media data (Prediction 4) will indeed become significant components of eDiscovery in cases of all sizes. It is important to have technology which can handle these things. My prediction for the year involves a prior stage – before you consider what technology to use for social media you have to apply your mind to the question whether there is any which might be relevant; this will be the year when lawyers are caught on the hop because they did not apply their minds to the importance of one of these new sources of discoverable data – not just because the rules require it, but because it contains evidence. As Roe Frazer says, you need software tools capable of finding that evidence, and doing so proportionately.

One of Roe Frazer’s predictions came true in between my starting and finishing this post. He says (Prediction 10) that we can expect US approval of Alternative Business Structures in jurisdictions which have stubbornly refused to consider them. An article in the English Law Society Gazette reports, in an article headed US moves to liberalise are ‘just the beginning’ that Washington State Bar Association is moving in just that direction by authorising non-lawyers to advise clients on legal matters.

Of all Roe Frazer’s predictions, the one I most want to see is his Prediction 12 – the dropping of the “e” in the terms eDiscovery and eDisclosure. Whether or not we have an interim stage in which we refer to “pDiscovery” or “pDisclosure” is open to question, but we must surely have already reached a stage where the need to distinguish between electronic and other information has gone.

Cicayda is not just about technology. It is also driven by a conviction about the accessibility of justice. Cicayda’s Marc Jenkins has written an article called eDiscovery for 21st-century Lawyers on the Stanford University Codex site in which he eloquently pairs technology and justice – using the one is a pre-requisite for delivering the other. Justice which most people cannot afford is not justice at all.

As a post-script, I will shortly be publishing the set of photographs, taken in Prague, from which the picture of Roe Frazer above is taken, I also have a rough-cut of a video interview with him, for publication shortly, in which he expands on what he says about predictive coding and Cicayda’s alternative approach to the computer-assisted review.

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Tristan Jenkinson of Navigant talks about the relationship between forensics and electronic discovery

What is “forensics” and what does it have to do with electronic discovery / eDisclosure? Tristan Jenkinson of Navigant is a forensics expert, and he examines the relationship between forensics and the discovery in this short video.

Forensics, Tristan says, is about the investigation of data. It involves looking at information held in and around electronic files, much of which is never seen by the user but which gives information about, for example, the time and place of creation, the user and the device, which may form part of the evidence in a case.

This goes beyond verification of validation of the data itself, important though that is, not least because the metadata may support or contradict the evidence of witnesses. He talks also about “deleted” files and explains that they may still be recoverable.

The subject goes beyond learning more about conventional documents and extends into social media, chat and other new forms of communication.

As Tristan Jenkinson says in closing, it is worth at least knowing that these tools and abilities exist so that lawyers can make a decision as to whether to call upon the expertise of forensics consultant as an adjunct to an electronic discovery / disclosure exercise.

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Nuix webinar on 28 January: eDiscovery – are you seeing the whole picture?

A webinar to be presented by Nuix on 28 January will go one step behind the debates about the accuracy of technology or the quality of the review. What happens if you are missing chunks of data which never makes it into the review system at all?

The speakers on this webinar are Craig Ball, Zach Nolte of DTI Global and Scott Cohen of Winston & Strawn. They will consider, among other things:

  • Common data issues that can set you to fail
  • The complications and consequences of incomplete data
  • Cases where parties sought relief due to incomplete or otherwise problematic data
  • Key indications that you are seeing the whole picture.

There is more information and a registration form here.

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Guidance Software webinar on 14 January: Placing the suspect behind the keyboard

Guidance Software is presenting a webinar on 14 January at 11.00am PST called Placing the suspect behind the keyboard.

That is in fact the title of a book by Brett Shavers, and it is he who will present the webinar.

His focus is the “who”, “what”, “where” and “when” which are the key questions for forensic investigators. He will cover questions like Where and how to search for critical dataHow to use the data to reconstruct the events and  How to connect the events to the suspect

Brett Shavers will be joined by Robert Bond of Guidance Software.

There is more information and registration details here.

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APT Search seeks eDiscovery product specialist

APT Search specialises in recruitment for enclosure / eDiscovery posts. Among other opportunities now available is one for an eDiscovery product specialist based in London.

The position is part of a Client Support Services team. The role involves, among other things, working with clients, creating and presenting workflows and similar documents, and providing training.

There is more information, with contact details, here.

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ZyLAB recorded webinar: Tribute to Judge Facciola on the occasion of his retirement

Towards the end of last year I took part in a webinar organised by ZyLAB in tribute to US Magistrate Judge John Facciola on his then impending retirement.

Mary Mack of ZyLAB moderated and Craig Ball brought his long experience as both a trial lawyer and a forensic expert to the discussion.

The voice which mattered most was, of course, that of Judge Facciola himself. He gave us the benefit of his years of experience together with some thoughts on future developments in eDiscovery.

A recurring theme in the webinar was the conflict between the perceived conflict between the duty of lawyers to do the best for their clients and their obligations of cooperation and proportionality in giving discovery. One of Judge Facciola’s messages is that justice is no longer available to ordinary people and ordinary businesses, in large part because of the growing costs of eDiscovery.

That webinar has now been made available for download. You can find it here.

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kCura webinar on 22 January: Building information governance policies and workflows

kCura is presenting a webinar on 22 January at 4.00pm GMT with the title Building information governance policies and workflows. The guest speaker is Bennett Borden of Drinker Biddle & Reath, one of the founders of the information governance initiative. Rene Laurens from kCura is the host.

The webinar aims to identify the main priorities for organisations developing information governance policies and workflows. Information governance is a wide term, not only embracing many disciplines, but sweeping up a varied set of tasks.

Some are easier than others or, at least, more identifiable, and different companies will have varying priorities. Data remediation, at its simplest, means getting rid of data which is valueless either because of its age or because its content adds nothing to the business. It may have been valueless from the start; it may relate to an activity in which the organisation has no continuing involvement or responsibility; it may have belonged to former employees whose data has no continuing significance.

If this sounds simple in concept, the practice is not really as easy as deleting whole volumes without first considering whether there is, hidden within them, data which is relevant to duties (such as eDiscovery obligations) or or which has value (such as intellectual property) which may be overlooked. The right processes, and the right tools are required.

The webinar registration form is here.

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Epiq Systems webcast on data security on 15 January

Epiq Systems is presenting a webinar called Resilient Defense: Best practices in preparing for cyber warfare on 15 January.

The subjects to be covered include the regulatory requirements relating to the safekeeping of data and the responsibility of law firms for the security aspects of keeping client data.

The webcast will be given by Aaron Crews, senior associate general counsel and head of eDiscovery at WalMart; Gerry Stellatos, a senior manager of security consulting at Mandiant; and Neil Watkins, vice president of security, risk and compliance at Epiq Systems.

There are more details and registration information here.

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Dispute resolution in Singapore and Hong Kong – a turn-of-the-year round-up

It is time that I did a review of eDiscovery developments in the Asia-Pacific region, and particularly the common law jurisdictions of Hong Kong and Singapore.

It is perhaps only from half a world away that one lumps Hong Kong and Singapore together as if they were slight variants on an Asia-Pacific theme, rather in the way that many Americans look on the UK and mainland Europe as a single place. They are very different places, but there is some justification for grouping Hong Kong and Singapore together, partly because they compete to some extent for disputes business, but mainly because they both have procedures based on English common law and rules, and an approach to litigation (and eDiscovery) which is closer to the English model than anything found in mainland Europe.

Here are some recent articles and links.

Electronic Discovery in Singapore: a quinquennial retrospective

Senior Assistant Registrar Yeong Zee Kin of the Supreme Court of Singapore has written an article for the Digital Evidence and Electronic Signature Law Review called Electronic Discovery in Singapore: a Quinquennial Retrospective which summarises the recent evolution of Singapore eDiscovery.

The reference to “quinquennial” derives from the fact that it is five years since Singapore launched its Practice Direction PD 3 of 2009 which began the formalisation of procedures relating to electronic discovery. I was there as it began, co-chairing an eDiscovery conference in October 2009 with the late Browning Marean. The first two photographs below show him and Yeong Zee Kin speaking at that event. The third is one of the Singapore skyline showing what is now the Marina Bay Sands hotel under construction. Like the hotel, the practice direction has since become part of the scenery

Singapore2009 Continue reading

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Clearing the decks, clearing the mind and reviewing my publishing output platforms

In addition to the (overdue) VAT return which I did on Christmas Day, I spent the Christmas break getting rid of stuff and thinking about how best to present (that is, get and give value from) the masses of information which I collect in a year. Here is a round-up of the sites I use for publishing content.

Christmas always brings a conflict, in that Americans barely stop working where the UK more or less closes down. In my terms, that means that my inputs remain constant while the scope for outputs goes down – source material keeps coming in at the top of the hopper, but shovelling eDiscovery material out into the world is a sure way to lose a UK audience which wants to forget about it all over Christmas.

If, therefore, you are an American who thinks I have overlooked something interesting which you have produced in the last three weeks, I probably haven’t. I was here, reading it all and squirrelling it away for use in some form or another.

There are other reasons for wanting to stop writing over Christmas. I may not want to sit somnolently in front of the fire or drink myself stupid, but I do value the occasional reboot of the brain, a few days when I do not write. The other great benefit of the Christmas break is the opportunity to get rid of stuff. I deleted nearly 400 GB of electronic data, mainly duplicates (that’s just mine – multiply that by the number of people in your organisation and think what volumes you are keeping). I shredded large amounts of paper. I emptied drawers which have lain untouched since we moved here in 1999 and which proved to be full of the detritus of a paper-based office – paperclips, dried-up marker pens and Filofax paper for example. I weeded and tagged the 4,000 or so photographs of 2014 which were collected, processed and archived but which have barely been used. Continue reading

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Two significant job opportunities in London from APT Search

Among other positions on its books, eDisclosure / eDiscovery recruitment specialist APT Search is looking for people to fill two senior eDiscovery / eDisclosure roles in London.

One post is for someone ready to become a managed review lead / review manager in London. The person they they have in mind will have a legal background and at least seven years experience in document review, in managing others and in leading teams.

There is more information about this post, including contact details, here.

The second search is for a Business Development Manager with an international eDiscovery vendor. The role involves selling to the corporate and financial services sectors. It covers the UK market, with potential opportunities to spread to mainland Europe for someone with relevant language skills and experience.

You can find more information about this post here.

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Forensic foresight and data divinations for 2015 from Eddie Sheehy of Nuix

The best predictions are the ones which appear extravagant at the time and obvious 12 months later.

Eddie Sheehy, CEO of Nuix, has made his Forensic Foresight and Data Divinations for 2015. The subjects – that cybersecurity is not going away, that data in the cloud must be searchable, that organisations will want to search across all data and not individual silos, and that investigators need data access everywhere – are not the primary message which Eddie Sheehy wants to convey.

The observation which matters is that information governance will move from being a theoretical ideal to something companies will actually engage in.

The central part of his prediction lies in the three points in the middle of the article – the need to understand what is in an organisation’s data, the need to classify it by value (“really important”, “really useless” etc), and the need to apply an action to the classified data, such as moving or deleting it.

The first phase of discussion about these things focused solely on cost and was hampered by the difficulty of quantifying either the amount to be spent or the amount to be saved. The discussion has shifted now, driven on the one hand by cybersecurity and regulatory fears, and on the other by the realisation that data contains value which cannot be realised as business information if it cannot be found. The pure accounting metric of costs versus saving or profit remains important, but survival and competitiveness lack quantifiable value tags.

Read Eddie Sheehy’s points in twelve months’ time, and you will wonder that any organisation ever doubted that these things matter.

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A few eDisclosure cases of 2014

I recently started an article on cases relating to eDisclosure and evidence in England and Wales but side-tracked myself with a brief summary of the rules and of the position as it stands after Denton – see A little CPR as precursor to some eDisclosure cases.

I make no apology for that, because it made sense to split the article into two. A second editorial decision was to remove Smailes v McNally to a post of its own (see below). Yet a third was to ignore most of what lay between Mitchell on 27 November 2013 and Denton on 4 July 2014. Although disclosure featured in several of the judgments in that period, most of them were concerned with the absurd test laid down in Mitchell which the Court of Appeal implicitly disowned in Denton (it’s the season of goodwill, so I will refrain from commenting on the way the Master of the Rolls managed in Denton to blame all the other judges for their interpretation of MitchellGordon Exall manages this subtly in his end-of-the-year post here). I am not willing to go through all the crapulous stuff of that wasteful period to try and work out which disclosure points survive the bonfire of the post-Mitchell judgments.

This post picks up a handful of cases. It is partial in two senses – partial in that it does not purport to be complete, and partial because I pick on the cases which have the messages in which I am particularly interested. There is one about formal disclosure rules; one is on the factors which courts must weigh when confronted by witness evidence which either conflicts with other witness evidence or is otherwise unappealing; one is about proportionality (but with a conclusion in that case that no expense should be spared); one is about conduct – human and well as procedural – so appalling that it wins the annual prize for judicial excoriation.

Smailes is enough for one year anyway. Over a year elapsed between the original hearing and the (inexcusably delayed) publication of the Court of Appeal’s judgment, which managed to mis-spell both the name of an important case and the name of one of the judges whilst condemning a solicitor for not checking that his disclosure list was complete. Continue reading

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Smailes v McNally: eDisclosure consequences of failure to comply with a clear Unless Order

My original plan was to include this case in a summary of recent eDisclosure cases. Once the long-delayed appeal judgment was published, it warranted more detail than the compendium would bear, so I publish it separately.

The eDisclosure case of 2014 was Smailes & Anor v McNally & Ors [2013] EWHC 2882 (Ch) (27 September 2013). Birss J decided that the claimant liquidators had conducted a reasonable search sufficient to comply with the terms of an Unless Order relating to disclosure. The Court of Appeal disagreed. Its judgment Smailes & Anor v McNally & Anor [2014] EWCA Civ 1296 (30 July 2014) only became available in December.

Precise reading of procedural rules

I suggest you read both judgments, the original one for its analysis of almost every point which can arise in an argument about electronic disclosure, and the appeal judgment for the point which actually mattered. I use Birss J’s judgment as a training aid, because it amply illustrates my continuing theme of RTFR (Read the F* Rules). The appeal judgment reminds us that reading the rules is only a start. Specifically (and to give away the ending) rules relating to the scope of “reasonable search” for documents don’t apply when the damn things are sitting in your office, already identified and agreed to be important.  Between them, the two judgments will leave you in no doubt that the procedural rules relating to disclosure are something which matter; you can win or lose the opportunity to fight a substantive (and in this case, substantial) case because of procedural failures relating to disclosure, with no consideration of the merits. Continue reading

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Video guide: Nuix 6 web review and analytics new features

Three classes of lawyer can learn something from watching videos about eDiscovery products.

One category is existing users who are contemplating an upgrade or who want to know more about the feature set of a product which they already use and the second category consists of users of other products which serve similar functions and who wish to undertake a comparison.

The third category, and the most important so far as I am concerned, is those who really don’t know what technology offers in support of the eDiscovery function. They’re not necessarily willing to admit that nor, perhaps, willing to set up meetings with providers.

Most video resources (as well as white papers and other product materials) are kept locked behind registration forms, meaning that potential users must sign up (and therefore give away their contact details) before they can see the marketing resources. I understand why companies do this – many marketing departments measure success by the number of leads, however tenuous, and a name and address captured in this way is considered a success. It is also thought to keep the prying eyes of competitors away from one’s IP.

Against that, for every set of contact details thus captured there will almost certainly be a dozen people who will decide not to sign up.

Nuix makes some of its videos and other materials freely available on the web for anyone to watch. Its recent video Nuix 6 Web Review and Analytics New Features is an example of this. Anyone who wants to get an idea of the power and functionality of the software can, anonymously and in under six minutes, have a look for themselves.

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iCONECT-XERA now offers corporate branding

The iCONECT-XERA review platform is already one of the most attractive-looking on the market. The word “attractive” implies more than merely that it looks pretty – the aim is to make lawyers of the iPad generation feel comfortable as they adjust to new technology, not that they have strayed into a techie’s world.

A secondary element which increases in importance is consistency of corporate branding. The idea here is that applications should look and feel as if they were an integral part of the organisation’s toolkit, rather than something dumped in the workplace from outside.

ICONECT XERA has long offered the ability to tailor the appearance of the software by, for example, allowing easy transition to other languages and configuration of the workspace to suit the user. It has now gone one step further and made it easy for the software to be “branded” with the get-up and logo of the user.

There is more information about this development here.

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Guidance Software: sharing site security threat intelligence across American industries

An article by Mark Harrington, General Counsel at Guidance Software, has the title How Legal Can Leverage the Latest Version of the NIST Cybersecurity Framework. The article is more interesting than this rather dry title might imply.

NIST is the National Institute of Standards and Technology which has recently released an update to its framework for improving the critical infrastructure cyber security. You can find the details of this by following the links in Mark Harrington’s article.

The most important message from the post concerns the benefits of sharing information about cybersecurity risks and events between US industries (and there is no reason why it should stop at US industries) so that organisations may better prepare and defend themselves in the interests of all.

This, as Mark Harrington points out, may involve concerns about corporate reputation which might otherwise not reach the public. We are reaching the point where the need to suppress threats outweighs this level of reputational risks, given the very much larger reputational risk (as well as purely financial risk) which lies in the belated discovery that the organisation’s confidential information is on the world’s desktop.

One conventionally thinks of this as being either credit card information or valuable intellectual property. The recent attack on Sony shows that the biggest reputational issue may in fact lie in the dissemination of incautiously worded emails.

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Epiq Systems: Media Planning 101 for Lawyers

Most of the readers who come here know of Epiq Systems because of the eDiscovery component in its wide-ranging work. Epiq is involved also in large corporate bankruptcy cases, in class actions and in other fields apart from pure discovery.

Its website is carrying a series by Kyle Bingham called Media Planning 101 for Lawyers, consisting of Television, Part I and Television Part 2, together with one called Online Impressions. They are all about notifications, principally in relation to class actions, and aim to tell lawyers how they can most effectively, and cost-effectively, bring notifications to people, not all of whom are identifiable.

Reading the articles, it becomes clear that many of the points made in them have wider application than to class-action notifications. Cybersecurity breaches give another example of matters which must be brought to the attention of a wide range of people.

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Huron Legal teams up with Commonwealth Legal to bring cost-effective eDiscovery review to Canada

We are hearing more and more about electronic discovery in Canada, not least through the activities of Commonwealth Legal, now a division of Ricoh Canada.

Despite Canada’s geographical proximity to the US, Canadian corporations lawyers cannot simply send their data across the border to take advantage of competitive US rates for review and other elements of the eDiscovery process because of Canada’s data protection laws. US companies who want Canadian business must therefore go to Canada.

Huron Legal has announced a tie-up with Commonwealth Legal following a number of significant review projects which they have done together. That has now been extended into a cross-border alliance which brings Huron Legal’s competitive review solutions into the Canadian marketplace.

Bob Rowe, Executive VP of Huron Legal, said “the alliance now provides Canadian customers the benefit of keeping their data within the protection of Canadian borders, that allows them to gain access to competitive review rates typical of the US market”.

There is a press release about this here.

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Cicayda article: Being ready to give discovery from anything

I have been talking and writing recently about the growing importance of apparently insignificant data which may be both discoverable and important as evidence. My article The importance of geolocation data as evidence, for example, picked on the information which lurks within photographs, showing the time, date and location, as well as other information, at the moment the shutter was clicked. The result is a “document” of evidential weight potentially equal to an email or a Word file.

We have been hearing a lot also about the Internet of things, as personal, domestic, public service and industrial devices are increasingly attached to the Internet, giving and receiving information, often continuously. The Nest thermostat which we had fitted this week is an (everyday) example.


Marc Jenkins
of Cicayda has written about a particular aspect of this, namely wearable technology and specifically the increasing number of devices which record health and fitness. His article How is your litigation fitness?, like my geolocation article, points out that the data derived from such devices is both potentially discoverable as a formal matter and potentially useful as evidence.

He makes a wider point than this though. This is “technology that fades into the background” and becomes just part of everyday life. We use its output, either knowingly willing to be recorded in this way or unconscious of the implications. The assumption that this type of data belongs only in the matrimonial and personal injury field is a false one. Will we find when we need it? Will we even remember to look?

You need to sort through an awful lot of noise to extract anything meaningful from these continuous and ubiquitous data flows. As Marc Jenkins says, “there will be winners and losers in the legal field [..and..] the winners will be outside counsel who know where to find this data in individual cases and turn it into knowledge that persuades others”.

In a business context, it pays to be aware of this and to anticipate the need to access meaningful signals from the noise and, as Marc Jenkins puts it, “to analyse any eDiscovery, information governance and legal issues that are created by [any] new application, technology or process”.

He makes the point that lawyers need fast, reliable and efficient eDiscovery tools (and, not unreasonably, points to Cicayda’s own discovery applications), to extract this value in a way which is evidentially sound, and to do so in a cost-effective, speedy and proportionate way.

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Publications and an event from the Information Governance Initiative

In a very short time, the Information Governance Initiative has become the most authoritative voice on the subject of information governance – the need for it, the best way to achieve it and the benefits of it. The latest News email from executive director and founder, Barclay Blair, includes three things which are of interest namely:

An information governance success story from IGI Charter Supporter Active Navigation

A white paper from IGI Charter Supporter HP Autonomy called Getting Started with your Information Governance Blueprint 

The announcement of a 2015 Chief Information Governance Officer Summit on May 20-21 in Chicago.

I will next see Barclay Blair when he and I take part in a session at LegalTech New York 2015 called IG Beyond 2020. It is sponsored by Nuix and the other panellists are Alison North, Judy Colgan of Nuix and Leigh Isaacs of Orrick. It is part of a programme of IG events run by Nuix at LegalTech and is the last session of that busy event.

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ILTA expanding beyond North America

I wrote here, here and here about ILTA Insight in London, one of the best legal IT conferences in the calendar. Copies of the presentations are posted on ILTA’s website.

ILTA is working to expand its membership outside North America and this is something I am keen to encourage.

The many benefits of membership are listed on ILTA’s website. ILTA is currently offering non-members in the UK and Europe the opportunity to join and enjoy membership benefits for 2015 at a 50% discount. As membership in ILTA is by entity, once your firm has subscribed, any and every staff member can fully participate.

To get the discount, contact Kenny Pettitte (kenny@iltanet.org) directly or download a Membership Application and write INSIGHT on the top of the form.

As well as a rolling programme of educational and networking events, and an extensive online community and content repository, membership also includes access to timely publications. Their flagship publication is their annual Legal Technology Survey, and as a taster of what ILTA can offer, they have kindly agreed that I can share the 2014 Technology Survey with you.

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APT Search is looking for a litigation support consultant in London

eDiscovery / eDisclosure recruitment specialist APT Search is seeking to recruit a litigation support consultant for a law firm with offices around the world.

The person they are looking for is expected to have a solid working knowledge of all areas of the EDRM and the ability to process data in various forms to a high standard using a range of industry recognised tools.

There is more information about this post here.

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Using Equivio Zoom to streamline eDiscovery processing capabilities

Equivio brings to its press releases the same approach as it does to data – anything unnecessary is stripped out and every word which is left counts for something.

Its announcement that Nashville-based LogicForce has taken Equivio Zoom to streamline its eDiscovery processing capability runs to no more than four paragraphs. It is worth expanding a little on what this involves and how Equivio Zoom will “accelerate eDiscovery business process and Discovery and review costs for [LogicForce] clients”.

Equivio’s speciality is text analytics applied to the reduction of data volumes so that relevant data can be turned into useful information and thence into a strategic and tactical tool. Equivio is a company of continuous invention, constantly evolving new and better ways to reduce volumes, speed up processes and get lawyer eyes engaged as soon as possible on the documents which matter.

Its earlier products tackled specific areas which achieved the biggest gains – email threading and near-duplicate detection represented enormous strides, in that lawyer time is maximised by the reduction of repeated work over the same ground. Batching and language detection achieved the same effect, and Equivio’s predictive coding tool, Relevance, maximises early lawyer input still further.

Equivio’s Themes application went one step further, by encouraging lawyers to follow the story (and eDiscovery is ultimately about stories) down avenues which may not have appeared at all from conventional ways of looking at data. The particular benefits of Equivio Themes are described in a paper on the Equivio website which I wrote for them called Shifting the eDiscovery Focus Back to Lawyers Looking for Evidence

All these tools are grouped together in a single application, Equivio Zoom, which enables services and solution providers like LogicForce to cut both the time and cost of the discovery, not least by integration into review platforms like iCONECT’s XERA (I once wrote an article bracketing together Equivio Zoom and iCONECT-XERA as examples of a new breed of visually attractive, intuitive products which were designed to engage the lawyer, not just the technical genius).

Equivio’s talents at software invention are matched by an ability to explain their processes which outstrips any other player in the market for clear explanations (I don’t often describe any company as “best” at anything but make an exception for Equivio’s website and clarity of explanation whether written or oral).

To see what I mean, go to the Solutions section of Equivio’s website where sections called Overview, Early Case Assessment, Culling, Review and QA set out clearly (and, again, in the fewest possible words) what tools, processes and benefits are available to companies like LogicForce on behalf of their clients.

Two other things on the Equivio website are well worth looking at while you are there. One is a recent press release about eDiscovery provider RVM achieving Equivio Partner STAR Certification. Equivio has devoted an immense amount of resource over the last couple of years both in education and in the encouragement of its providers.

The other is a set of webinars which Equivio produced in 2014 under the general title Predictive Coding Minus the Hype which you can find on the Resources page here (check the box Webinar to limit the results to this particular form of resource).

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InnoXcell Asia Symposium 2015 in Hong Kong

I have been to several of the events organised in Hong Kong or Singapore by InnoXcell and have always found them both useful and interesting

For 2015, InnoXcell has announced a three-day event covering legal risk, compliance, eDiscovery, financial crime, corporate corporate governance and data privacy, to take place in Hong Kong from 14 to 16 April 2015. The programme looks good.

The website is here.

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iCONECT with Content Analyst offers free predictive coding for pro bono cases

I have written recently about iCONECT’s initiative which makes its iCONECT-XERA review software available free for certain pro bono cases.

ICONECT has taken a further step in this direction by an alliance with Content Analyst which makes predictive coding freely available for pro bono cases through iCONECT’s worldwide network of law firm, government and hosting vendor clients.

There is a press release about this here.

Meanwhile, CIO Review has selected iCONECT Development as one of the publication’s 20 Most Promising Legal Technology Solution Providers in 2014. iCONECT was described as “stirring a revolution in the legal space”. There is more information about this here.

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Guidance Software EnCase now integrates with DropBox

For many of us, DropBox is just a convenient place to park files either for backup purposes or to ensure that a copy can always be accessed from any device and any location.

Dropbox for Business is a very different creature, giving companies robust admin capabilities with visibility and control over large volumes of company data. Once one gets into enterprise file sharing and synchronisation services of this kind, it immediately becomes necessary to be able to retrieve it for eDiscovery and other purposes.

Guidance Software’s EnCase eDiscovery has long been used for defensible search and the ability to collect and preserve electronically stored information from company servers and all the other endpoints. EnCase now integrates with DropBox for Business allowing control over the entire eDiscovery process from legal hold to identification, collection, preservation, processing, first-pass review, early case assessment, review and production.

There is a press release with more information about this integration here.

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kCura webinar on 11 December – Relativity Fest Judicial Panel Part II

On 11 December (that’s TODAY) at 10.30 CST, kCura present Part II of the Judicial Panel on E-Discovery. Like the first one, the panel is moderated by David Horrigan.

Judges Nora Barry Fischer, Andrew Peck, Xavier Rodriguez, and David Waxse all take part and subjects include  BYOD, mobile, data privacy, and how updates to the Federal Rules of Civil Procedure will affect e-discovery.

You can find more information and registration details here.

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Guidance Software webinar on Wednesday, 10 December: eDiscovery 2014 – the year in review

I am one of the participants in a webinar to be presented by Guidance Software on Wednesday 10 December at 11:00am PST | 2.00pm EST.

The more significant presenters are US Magistrate Judge Andrew Peck and Chad McManamy of Guidance Software. Between us, we will look back over the year 2014 and consider, amongst other things:

  • Pending changes to the FRCP and their possible effects
  • International events and the growing importance of Asia Pacific
  • The overlooked importance of Rule 502(d)
  • Cloud e-discovery going mainstream
  • Law-firm security vulnerabilities
  • New strategies for technology assisted review (TAR)
  • What’s on the docket for legal technology and trends in 2015

There is more information and a registration form here.

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Consilio webinar on 10 December: Audio, Chat and Mobile – managing non-traditional datatypes

Consilio is presenting a webinar in conjunction with EDRM on 10 December at 10:00am Central | 4:00pm GMT with the title Audio, Chat and Mobile – tips for effectively managing non-traditional datatypes.

The primary focus in this webinar is on the datatypes specifically created by financial services institutions, most notably Bloomberg chat and audio recordings. I have recently written about Consilio’s new application for managing Bloomberg Chat, and a new Consilio announcement of this week launched the latest implementation of its audio review solution.

Both of these are significant elements in the preservation, capture and review of financial services data, not least because the requirements of financial regulators include keeping this material and making it available promptly on demand. Because it has been kept for this purpose, it is available for eDisclosure / eDiscovery requirements.

The speakers at the webinar are Dera Nevin of Proskauer Rose LLP, and Drew Macaulay and Ben Rusch of the London office of Consilio. The moderators, as usual with EDRM’s webinars, are George Socha and Tom Gelbmann.

There is more information and registration details here.

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Nuix webinar on 3 December: Defending data – how do you compare?

Ari Kaplan specialises in asking companies and lawyers for their first-hand experiences and turning the results into a report of value to a wider audience.

He has recently undertaken a survey for Nuix in which he asked information security professionals about the prevention of security breaches. The conclusion is that prevention is “an unattainable goal”, which shifts the focus to the aftermath – how do you detect and remedy breaches and their effects as quickly as possible?

Ari Kaplan is taking part in a webinar organised by Nuix on 3 December at 8am PST / 11am EST / 4pm GMT (UK) to discuss this research and to consider, amongst other things, the tension between productivity and security – how do you keep the business running and profitable whilst constantly fighting security fires?

The other panellists are Dr. Jim Kent, Global Head of Investigations and Cybersecurity at Nuix,

Amie Taal
, Vice President, Digital Forensics and Investigations at Deutsche Bank, Michael Kennemer, Global Security Architect at Celanese and Stephen Stewart, Chief Technology Officer at Nuix

There is more information about this webinar and a registration form here.

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