FTI on the GDPR: a business critical enabler for CIOs

FTI has an article in the recent edition of Raconteur called GDPR: a business-critical enabler for CIOs. One paragraph from it effectively summarises the rest. Talking of the General Data Protection Regulation, now only 13 months away, Sonia Cheng of FTI says:

“It is a major catalyst for change. The GDPR makes you ask questions such as what kind of data do you have, why do you have it and where does it flow? It will also provide the foundation for other services, including revenue generation and better customer service, as well as dealing with security breaches and preparing for cyber attacks.”

There is no running away from the fact that the biggest teeth in the GDPR are the potential for very significant fines for breaches of its wide-ranging terms. Sonia Cheng’s paragraph quoted above, however, reminds us that there are opportunities here both to remedy past omissions and to look for new revenues and new clients. Continue reading

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Interview: Brandon Mack of DTI-Epiq – technology assisted review in the real world

I interviewed Brandon Mack of DTI-Epiq recently, and opened by asking him what he meant by technology-assisted review. We went on to discuss how technology is changing the practice of lawyers, the widening scope of projects which use eDiscovery tools and skills, the impact of big data and the Internet of Things, and the normalisation of technology as it is seen by judges as well as lawyers. That is quite a lot for one short interview.

Technology assisted review is, Brandon Mack says, a very broad term. The market has seemed to make it synonymous with predictive coding, but in reality technology-assisted review is any mechanism that we use to enhance the effectiveness of review of data. Brandon Mack refers to deduplication as one example; others include clustering and email threading. Continue reading

Posted in Analytics, Big Data, Discovery, DTI, eDisclosure, eDiscovery, Electronic disclosure, Epiq, Internet of Things, Predictive Coding, Technology Assisted Review | Tagged | Leave a comment

Reminder: Sedona WG6 London event on 3 May on cross-border data transfers

This is a reminder that there is an interesting and important panel discussion next week in London when a panel organised by Sedona Conference Working Group 6 discusses the challenges of cross-border data transfers. I wrote about it here.

The focus will be on the challenges posed in relation to preservation and discovery obligations across borders. We will look at examples of current challenges, at whether these will change (for better or worse) under the GDPR, and at the likely effect of Brexit. Our aim is to incite dialogue.

There is more information here with a link to a registration form. Part of the purpose of this session is to encourage interest in the work of the Sedona Conference and in particular the cross-border and data protection work of Working Group 6.

There is no charge for this event and it is not necessary to be an existing member of the Sedona Working Group series in order to register. Should you have any questions on how to register, please don’t hesitate to contact info@sedonaconference.org.


Posted in Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, GDPR, Sedona Conference | Leave a comment

A roundup of eDisclosure developments in England and Wales – some rules

This is the second in a series of four articles about the rules and cases relevant to disclosure in England and Wales. The series is introduced here. Although this article is headed “eDisclosure developments” for consistency with the rest, there have been no new relevant developments in the rules themselves since the modifications made at the instigation of Lord Justice Jackson in 2013.

To repeat one thing from the Introduction, we are developing a new on-line resource to replace the one which disappeared on the last upgrade to www.edisclosureinformation.co.uk. This series is designed as an updater.

Without here purporting to give a full survey of the rules (that, as I say, is in the works) here are a few key elements, mainly ones which have been referred to in the more recent cases. The links are to the rule itself:

Rule 31.6 CPR – standard disclosure

The word “relevant” disappeared from this part of the rules in 1999. The test since then is whether documents are supportive of or adverse to the case of the giver or any other party. Have a look at Shah v HSBC Private Bank Ltd where the Court of Appeal said that the term “relevant” was fine for everyday use down to the moment when something turned on the precise construction of Rule 31.6 – “in cases of dispute it is important to stick with the carefully chosen wording of the rule”. Continue reading

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Interview: Matthew Geaghan of Nuix talks about the transferability of eDiscovery skills and technology

NuixLike Nuix itself itself, Matthew Geaghan began with the hard technology of forensics and grew from that into eDiscovery, digital forensics, incident response and cyber security, acquiring new skills as the focus changed.

Some retraining may be necessary, Matthew Geaghan said, but eDiscovery skills are a good platform for helping corporations with the wider challenges they face now. The balance is changing between the players; Matthew Geaghan referred to the “utopian vision of collaborative, cooperative triangulation between law firm, service provider and corporations”.

Everyone involved is certainly more aware of the details of the technology available to address the issues, he says, and there are opportunities for those willing to adapt.


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FTI webinar on 18 May: using information governance strategies to prepare for the GDPR

Although many companies are effectively preparing for the new regulatory environment of the General Data Protection Regulation, many are not. There are anecdotal suggestions that some companies have abandoned existing compliance efforts under the misapprehension that Brexit will make the GDPR irrelevant within the UK.

That is not so, for two reasons. The most obvious is that the GDPR, taking effect as it does in May 2018, will be in force well before the earliest possible date for Brexit, and organisations will therefore be subject to its provisions for at least a year (and probably rather longer).

The other reason is that, however isolated the UK is after Brexit, it will still need to take part in cross-border data flows, not least those involving the US.

There is a third reason: many of the provisions of the GDPR are things which companies ought to be doing anyway, with or without a regulatory whip at their back. To take one example, the GDPR will require organisations to report data breaches (and these are very widely defined) within 72 hours of their occurrence. While the potentially significant GDPR fines are a big spur to action, so too are the risks which follow from negative customer reactions, from shareholder unease and from other factors which matter very much for a company’s profile.

FTI has long had significant expertise in this area. Its webinar on 18 May, done in conjunction with Bloomberg BNA, will cover (among other things): Continue reading

Posted in Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, FTI Technology, GDPR | Leave a comment

Relativity webinar on 27 April: putting a leash on the Internet of Things

One of the recurring themes in this blog is the need to be aware of the increasing amount of personal data collected about us every day by our own devices.

This, whether we like it or not, is used by organisations to put us into categories for marketing and other purposes. They use ever more sophisticated analytical software to draw conclusions both about people en masse and about each of us individually.

A webinar organised by kCura is an opportunity to find out how this data is collected and what is done with it. The main discussion points include: Continue reading

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Sedona Conference WG6 event in London on 3 May: the challenges of cross-border data transfers

The Sedona Conference Working Group 6 covers international electronic information management, discovery and disclosure, including data protection issues. WG6 has three membership-building events coming up, one in Chicago on 24 April, one in London on 3 May and one in Washington DC on 9 May.

The London event is sponsored by Swiss Re (whose offices in the Gherkin will host the event) and by international eDiscovery provider Consilio.

The panel members are Matthew Davis of Consilio, Natascha Gerlach of Cleary Gottlieb, David Mayo of Deutsche Bank and me. The moderator is Monika Kuschewsky of Squire Patton Boggs.

As you can see from the event description here, our intention is a dialogue on the challenges posed by cross-border data transfers, specifically in relation to preservation and discovery obligations. Our main focus will be on the likely effect on data transfers of the GDPR and Brexit but we will range widely within the broad topic heading. We are keen to involve the audience and are happy go down avenues suggested by audience questions. Continue reading

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

A roundup of eDisclosure developments in England and Wales – Introduction

I went recently with Recommind (now OpenText) to talk to a City law firm about developments in eDisclosure in England and Wales. I have done a few of these with Recommind over the years, where we divide an hour between me talking about rules and cases and Recommind showing how their software, and particularly the predictive coding element of it, is relevant to modern disclosure duties.

When we originally devised it, this program focused on Practice Direction 31B, the Electronic Documents Questionnaire and the 2013 amendments to the rules instigated by Lord Justice Jackson. We reckoned that these building blocks were now old hat for a firm of this calibre, and I put together a new agenda which, while reciting a few key (and often misunderstood) rules, concentrated on the lessons from the more recent cases. What follows (divided into four posts) is a summary of what I said, with links to case reports and articles which I wrote at the time of the judgments.

My son Will and I are working on a replacement for the resources which I used to keep on my website and which disappeared with the latest website update. The content is more or less sorted out, but the mechanics will take us a while, and these posts might serve as an interim update. Continue reading

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Epiq: eDiscovery seminar in Singapore for financial services teams on 25 April

Epiq is organising an eDiscovery seminar for financial services teams to be held in Singapore on 25th of April 2017.

The context is the ever-increasing regulatory scrutiny, the growing complexity of cross-border investigations, and the increasing need to keep track of corporate data as growing volumes conflict with increasing constraints and controls.

The seminar will cover emerging business data trends and Epiq’s business intelligence platform, DMX, and its role in bringing both insight and efficiency to the eDiscovery process.

There is more information about this here, including contact details for seeking further details.


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LinkedIn entry as evidence of shadow director status

Lawyers are beginning to get the idea that the definition of a “document” in the discovery rules extends to entries on social media such as LinkedIn, Facebook and Twitter. There remains the perception, however, that these things are relevant only to crime and personal injury claims and that they have little bearing on corporate or commercial litigation.

Gordon Exall’s Civil Litigation Brief is, as so often, the first to point us to a case called Green v Marston. The point at issue was whether a Mr Lochner was a de facto director of an insolvent company.

In his article Social media and civil evidence: what did you say on LinkedIn? Gordon Exall points us to paragraph 52 of the judgment in which Lochner’s LinkedIn profile described him as corporate finance director of the company until after the liquidation date. Continue reading

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The Sedona Principles transcend jurisdictional differences

There are those among you, I know, who glance at the heading and opening paragraph of these posts and decide not to read those which do not relate to your own jurisdiction. That is understandable in many cases, but the recent release of the Third Edition of the Sedona Principles has value beyond the US and the Federal Rules of Civil Procedure.

This is a public comment version, with comments invited by 30 June 2017. Its full title is Best Practices, Recommendations and Principles for Addressing Electronic Document Production and, while some of its provisions are expressly rooted in particular Federal rules, the Principles (whether with or without a capital P) have application almost anywhere which requires discovery of electronic documents. Continue reading

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Interview: Ian Campbell of iCONECT on the theme of Choices

xera_logoweb_200piCONECT’s theme for Legaltech was CHOICES, and I asked CEO Ian Campbell what was the significance of this word.

Ian Campbell explains that “Choices” is a recurring theme throughout the use of the iCONECT-XERA platform – there are, for example, choices in licensing, choices in the tools to use, choices in workflow and choices in language.

There are also choices in viewing platform including (as I wrote here) the ability to review progress on a mobile phone.



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Video of our ACEDS panel on the GDPR – a hypothetical case study

In early March, I took part in a panel about the GDPR organised by the ACEDS London chapter. I moderated, and the participants were Daniel Cooper of Covington, Susan Knox of Mayer Brown and Will Wilkinson of Yerra Solutions.

Mayer Brown kindly provided the very fine auditorium and Yerra Solutions sponsored the drinks. In addition to that, Yerra Solutions arranged for the event to be recorded on video, and the result is now available here:

Continue reading

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

AccessData webinar on 26 April: taking your investigations to new heights with AccessData 6.2

AccessDataAccessData is presenting a webinar on 26 April at 11.00am PDT / 2:00pm EDT to talk about the newest features in its flagship eDiscovery product AccessData 6.2.

The main changes relate to the speed of processing, to scalability and to a much improved user experience. A webinar like this is a quick and easy way to find out what is new.

There is more about this webinar here, including a registration form.


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Interview: Erika Namnath of H5 on how H5 uses Relativity for its clients

I get the opportunity from time to time to talk to people from Relativity partners to find out how they use Relativity to help their clients. H5 is a Relativity Premium Hosting Partner which has long had a very good name for sophisticated search applications designed to reduce very large volumes of documents to manageable collections of those which matter.

I recently interviewed Erika Namnath who is Associate Director, eDiscovery at H5 and asked her to tell me how H5 uses Relativity to manage eDiscovery.

Continue reading

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Hal Marcus of OpenText on AI and the increasing take-up of predictive coding by lawyers

Hal Marcus is Director of Product Marketing at Recommind, an OpenText company. He is one of the more eloquent proponents of the use of predictive coding, not just as a technical matter, but as a significant advance on the way lawyers deal with large volumes of documents under pressure of both time and costs.

In this interview, I begin by repeating the rather cynical old assertion that lawyers would take to predictive coding as soon as something newer came along. Is Artificial Intelligence that new thing which will persuade lawyers that it is now right for them to use predictive coding?

Continue reading

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

FTI Consulting: Contract management can uncover value as well as risk

A recent edition of Raconteur included an interesting article about the growing understanding of the value of contract management and the role FTI Consulting plays in that. The need to be on top of a company’s contractual obligations, and the obligations owed to it by others, is something which looks both backwards and into the future. Many organisations have very many – sometimes tens of thousands of – contracts which have historically not been subject to any form of central control. No one part of the organisation knows what these contracts are or where they are, still less what they say.

It becomes increasingly important to know and understand what lies in these contracts, both the risk and the hidden value. It is necessary not only to grasp what exists already but also to manage properly future contracts. The skills and technology developed by FTI for handling eDiscovery exercises is well tuned for application to the management of contracts. Continue reading

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Interview: Adi Elliott of DTI-Epiq talks about eDiscovery in the cloud

Adi Elliott is VP, Market Planning at DTI / Epiq. Some people are talking about eDiscovery in the cloud as if this is something new, and it seems important to be clear both that eDiscovery has long been managed from the cloud and that many other business services and processes have similarly been run on software and servers owned and managed outside the organisation.

Continue reading

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DTI invests in Valora Technologies for auto-classification, predictive analytics and data mining

The merger last year of DTI and Epiq made one of the largest and most significant players in the global legal technology market. I recently interviewed Keith Conley, President and COO at DTI, who emphasised (among other things) the in-house capability of the merged business to provide in-house processing with DMX. The implication was that DTI / Epiq would bring its resources to developing and enhancing technology and not just to using it.

That intent is further evidenced by the announcement last week that DTI has made a strategic investment in Valora Technologies. Valora has long been a significant name in auto-classification, predictive analytics and document data mining technologies for information governance, eDiscovery and Records Management. It has remained narrowly focused in this niche area, becoming a respected specialist in its field. DTI’s investment is described as “the beginning of the coming-of-age of auto-classification” as well as evidence of DTI’s commitment to the technology behind information governance solutions. Continue reading

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Consilio offers External Spend Optimisation for corporate law departments

ConsilioPart of the rationale behind Consilio’s acquisition of Huron Legal was to expand its involvement in helping corporations understand and measure their external spending on legal services.

It is trite to say that legal departments want to reduce their budgets and to identify the most cost efficient ways of spending their money. Consilio’s External Spend Optimisation solution offers practical strategies to maximise the value of legal spending.

The key to this is benchmarking information which allows comparison between the value of services offered by different providers. Consilio conducts regular surveys aimed at establishing these benchmarks, and offers both experienced staff and its legal spend analytics and benchmarking tool, Sky Analytics, which is designed to bring together all the information about the external costs into a single place.

There is a press release about this here.


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Welcome to Brainspace as a sponsor of the eDisclosure Information Project

I am delighted to say that Brainspace has become the latest sponsor of the eDisclosure Information Project.

Brainspace creates machine-learning software designed to analyze massive amounts of unstructured data very quickly. Brainspace explores data – not just words and phrases, but also their context and meaning — dynamically identifying and organising documents into related clusters so that the user can immediately focus on exploration and learning.

The Brainspace tagline is Augmenting Investigative Intelligence, emphasising that human input is a critical component in the exploration. Brainspace builds clusters without human intervention. Its Concept Cluster Wheel groups documents by conceptual similarity much like a map and, as with a map, the user can navigate to neighbouring clusters. There is a page about this here. Continue reading

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Interview: Robin Snasdell of Consilio talks about the value of contract management

ConsilioRobin Snasdell is Managing Director at Consilio. I interviewed him recently, and asked him to explain what contract management is and why companies would go to Consilio for help with it.

Robin Snasdell says that companies which are engaged in some kind of contract management technology implementation look for opportunities to do more with the technology and get more value from its use.

There are big opportunities to take legacy contracts and move them into the technology, to extract data and metadata from them and use the resulting information to enhance the business. Continue reading

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Interview: Tom Palladino talks about the NightOwl Discovery Client Advisory Group

NightOwlNightOwl Discovery has recently set up a formal practice area called the Client Advisory Group. I took the opportunity at Legaltech to ask NightOwl’s president, Tom Palladino, what this means for NightOwl and its clients.

Tom Palladino says that NightOwl has always offered professional services to its clients over its 25 years. For the last six years, much of the advisory work has been done directly for corporations rather than for law firms. The Client Advisory Group was a formalisation of these established services.

Continue reading

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kCura’s London Relativity Fest on 25 April

kCura has organised a London event since 2013. It has had various names since then, most recently the “Relativity Spring Roadshow”, but I was not the only one who always thought of it as Relativity Fest London in line with kCura’s major conference in Chicago every autumn.

In 2017, Relativity Fest London is actually what it is to be called. An article here on the kCura site explains the varying names and purposes of this event as it changed from being a product launch occasion into one of the largest eDiscovery / eDisclosure events in the UK.

I took part last year leading a panel on predictive coding developments in the UK. That grew into a multinational (US, Ireland and UK) panel at Relativity Fest proper in Chicago.

This year I am taking part in a panel which includes US Magistrate Judge Andrew Peck and former Senior Master Steven Whitaker at which we will consider the extent to which jurisdictions can learn from each other’s rules and practical experiences, including the use of technology. The moderator will be David Horrigan of kCura.

My other panel is called Issues in cross-border eDisclosure and data protection. Again, David Horrigan will moderate, and my fellow speakers are Meribeth Banaschik of EY, Audrey Byrne of McCann FitzGerald and Jonathan Maas of the Maas Consulting Group. Continue reading

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FRONTEO appoints Craig Carpenter as CEO

One of the best things about my job is that I get to meet the senior people at the major companies in the eDiscovery markets. Quite apart from their influential position in the eDiscovery industry on which I comment, they are people I actually like to spend time with.

One I had missed until recently was Andy Jimenez, CEO of FRONTEO. I sat opposite him at a dinner organised by kCura at Legaltech and heard him speak on a kCura panel the following day, and regretted that I had not had the opportunity to meet him earlier. Wit and merriment are not necessarily the defining characteristics of this industry’s leaders, and Andy has them both, on top of a deep understanding of what clients want in the industry.

I’m sure there is no connection, but just as I have met him, Andy Jimenez is leaving FRONTEO. The positive aspect of this, so far as I’m concerned, is that his successor is Craig Carpenter whom I have known for ever, originally when he was CMO at Recommind (now OpenText). Continue reading

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Jake Frazier of FTI on the importance of information governance

Jake Frazier is one of the most eloquent advocates of the idea that organisations need to have in place a robust information governance programme which brings together the various departments, including IT and legal, who have an interest in managing data.

I recall speaking to him when he was first appointed to FTI when he emphasised the importance of picking projects which simultaneously mitigated risk, uncovered value and, significantly, were achievable in a reasonable timeframe. If you can quickly show a return, in whatever form, then it is more likely that you can get budget allocation to do some more in the next year.

Keeping data has a cost, in terms of the infrastructure and personnel needed to look after it, and in terms of the prospective or contingent cost of meeting eDiscovery demands, falling foul of some compliance obligation, or having it attacked in a cyber security incident of some kind. There is a balance to be struck between that cost and the investment needed to mitigate the cost and uncover value. Continue reading

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Lynn Frances Jae named as Marketing Director at iCONECT

I have bumped into Lynn Frances Jae at almost every US eDiscovery conference I have been to, and it is a pleasure to see that she has been appointed Marketing Director of iCONECT.

She has 17 years of marketing experience in eDiscovery and information governance – which means “forever” in the context of a new industry, and reaches iCONECT at a time when it is on a roll after the many developments and enhancements which I have reported over the last year or so.

iCONECT CEO Ian Campbell said:

“As the eDiscovery landscape continues to shift, Lynn’s breadth of experience will keep iCONECT focused on the needs of both our clients and channel partners. We are experiencing expanded adoption of the XERA platform, and her marketing efforts will help us to understand the clients, anticipate their needs and provide clear and intuitive messaging.”

There is a press release about this appointment here.


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Interview: Jill Brock of FRONTEO talks about FRONTEO’s ROI Analyser

Jill Brock is Director of Marketing at discovery and analytics provider FRONTEO. I caught up with her at Legaltech and asked her to tell me about FRONTEO’s ROI Analyzer which was launched at the end of 2016.

The ROI analyser is a web app designed to help scope out managed review projects. It guides the user through various inputs such as the timeframe, the number of documents, the nearest FRONTEO review location and other factors relevant to the calculations.

A slider enables you to fine-tune the inputs. The particular example given by Jill Brock is the ability to decide what elements of the task might be performed in-house as opposed to outsourcing them. The ROI analyser will show how a different balance between these two ways of achieving the objective will affect the time and the cost of the project.


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Getting informed about choosing to work differently at the British Legal Technology Forum ’17

I have not been before to the British Legal Technology Forum. Most of the events I attend have eDiscovery / eDisclosure at their heart, and I had sensed (perhaps wrongly) that most of the exhibitors and the talks have been off my patch.

I went to it last week, partly because I was invited to speak, and partly because a larger proportion of the people, subjects and activities touched on areas which matter to me. This is perhaps because electronic discovery – the process of extracting information from data for the purpose of disclosing it to other parties – has itself spread to encompass both wider subjects and technology with purposes beyond eDiscovery. As well as mainstream eDiscovery providers like Epiq, exhibitors included, for example, the analytics software provider Brainspace whose tools have a wider remit than eDisclosure but which are nevertheless increasingly bound into eDiscovery processes. Artificial intelligence software company Neota Logic was there as well, reminding us that we are not far from building AI tools and processes into eDiscovery. The skills and tools are spreading their wings more widely than disputes, and the people are beginning to follow.

The chairman for the day was Professor Richard Susskind, and the agenda took its tone from his interest in the crossover between technology tools and the people who use them or rely on them, whether as users or as the clients for whose benefit the work is done. Continue reading

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In government as in business, having no institutional memory means waste and lost opportunity

A Twitter thread from George Peretz QC draws attention to an article from the Institute for Government called Policy reinvention leads to huge waste and little progress.

In a series of tweets, Peretz laments the lack of institutional memory in government “made worse by stripping out of middle management and end of ‘the file'”. He paints a picture of civil servants covering ground already discussed because no one presently in charge has access to any human or any tangible (“the file”) means of recalling past labours.

Much the same ground was covered in an article in The Times on 24 January called Whitehall wastes £500 million a year on rehashed policies (subscription required). Continue reading

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OpenText on using discovery analytics to solve GDPR challenges

In talking about the pending General Data Protection Regulation, I always take the opportunity to suggest that GDPR requirements might be the spur to the amorphous concept of information governance, providing the return on investment which companies have hitherto sought in vain.

I also draw attention to the application of eDiscovery skills and tools to an ever-wider range of problems from contract management to M&A. The identification of personal information in large bodies of documents, required for GDPR compliance, is an obvious example of this.

Adam Kuhn of OpenText has written a useful and interesting article on this called How we’re using discovery analytics to solve GDPR challenges. The whole (and short) article is worth reading, but its nub lies in this paragraph:

In this way, you can start with a known dataset (like your vendor contracts database) and then leverage analytics to identify unknown, risk-prone documents. As you review more documents and find more PII-laden content, the algorithm is constantly learning in the background. It conducts broad sweeps of your remaining data to prioritize batches of content that are likely to contain PII. What’s more, these algorithms can run on an issue-specific basis—a crucial ability since the GDPR distinguishes between “personal data” and “sensitive personal data.” Continue reading

Posted in Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, GDPR, Information Governance, OpenText | Tagged | Leave a comment

Cautionary tales of boilerplate and specificity

A US case brings us some RTFR (Read the F* Rules), a difference of emphasis between US rules and those of England and Wales, an opportunity to ask what “boilerplate” means, and a word to avoid if possible when speaking.

In a case called Fischer v Forrest, US Magistrate Judge Andrew Peck warned parties, in both specific and in general terms, about compliance with the Federal Rules of Civil Procedure as amended from 1 December 2015.

His particular points relate to responses to discovery requests, of which he says that:

They must state grounds for objection with specificity;

An objection must state whether any responsive materials are being withheld on the basis of that objection; and

Parties must specify the time for production and, if a rolling production, when production will begin when it will be concluded.

His more general point is that rules, including “new” rules, are there to be obeyed; that compliance involves more than an airy wave towards the spirit of the rules; that boilerplate text (for example that used for raising objections) must be updated to reflect the recent rule changes; and, not least, that failure to comply with the rules has consequences. Continue reading

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Giving a sense-check to data from sentiment analysis and other analytical tools

NuixAn interesting article called The sentiment at Legalweek 2017 by Angela Bunting, Director of eDiscovery at Nuix, considers the value of sentiment analysis tools.

Angela Bunting took data relating to Legaltech – tweets with relevant hashtags and blog posts – and put it into software which purports to analyse sentiment. The software’s conclusion was that the material was overwhelmingly negative, which does not accord with her own sense of what was said about the show.

As Angela says, cultural variations, slang, irony and sarcasm all raise difficulties when subjected to computer analysis. Looking at my own article about Legaltech, which was largely enthusiastic about it, I can see that some of the content and phrasing, not least the passages in which I write about the reported reactions of others, might lead to the overriding conclusion by sentiment analysis software that I was unimpressed. A human would, (I hope) understand that I set out the objections in order to knock them down. Legaltech is a tall poppy and, as I observed in the article, some people do like to moan about it; that instinct, when added to more justified criticism, might well give sentiment analysis tools the “wrong” idea because they lack the ability to overlay their conclusion with understanding of the human motive behind some of the inputs. Continue reading

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Data in unlikely places: measuring effort and performance – and not just for discovery

I have published articles recently on the prevalence of data in the increasingly wide range of devices which people use every day, perhaps without much thought. That lack of thought becomes significant when the data may be relevant for discovery purposes.

It is not just potential discovery data which may be captured by these devices. A marathon runner was apparently caught out by a mixture of photographic and performance data, and the difference between a marathon and a sprint can now, it seems, be captured by a wi-fi enabled condom. More on these diverse subjects below.

By “discovery” I do not simply mean because it is required for civil litigation or in the course of an internal regulatory investigation. It is relevant also to criminal investigations where data may help the authorities to obtain a conviction or, just as importantly, to help a suspect achieve acquittal.

My constant repetition on this subject has, I now see, omitted some unlikely-sounding sources.  I am obliged to Andrew Haslam of Squires Patton Boggs for drawing to my attention my first example, a heart pacemaker, which he found in an article headed Data on man’s pacemaker led to his arrest on arson charges. Continue reading

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Interview: Ian Campbell of iCONECT talks about speeding up document review

xera_logoweb_200pIan Campbell is President and CEO of iCONECT, the makers of the iCONECT-XERA review software.

iCONECT has been working on speeding up review, responding to lawyers who ask “how quickly can get through these documents?”.

In this interview, Ian Campbell says that there have been more than 200 recent optimisations made to XERA designed to speed up review.

Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, iCONECT, iCONECT-XERA, Litigation Support | Tagged | Leave a comment

Graphical illustration from FTI on data from mobile devices

fti_consulting_200Although I have recently mentioned mobile data in a different context, there is no harm in rubbing the point home with a second reference.

FTI’s webpage headed Mobile device eDiscovery and investigations has an infographic which, as these things are meant to do, draws attention to some of the hard facts which link mobile data and eDiscovery.

Being a US site, there is inevitably focus on the sanctions which have been faced by litigants who get this wrong. There is a more positive value, perhaps, in the guidance designed to help you get it right.

One part of the graphic illustrates a point which I make frequently – if you do not know or think about the devices which may hold potentially discoverable data then you never reach the point of deciding whether it is useful and proportionate. That applies whether you are considering your own clients’ devices or those of other parties. Continue reading

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ACEDS London panel – get a DPO and do some IG before the ICO enforces the GDPR against YOU

ACEDS_200Last year I moderated the panel which launched the ACEDS UK Chapter. Our subject was predictive coding, and the combination of the subject-matter and the organising skill of the ACEDS UK committee got us a large audience by London standards. Last night, ACEDS did it again, this time with the pending General Data Protection Regulation. Mayer Brown let us use their extremely fine auditorium. Yerra Solutions sponsored the event and, once again, James MacGregor of FRONTEO kindly asked me to moderate.

As with predictive coding, it would be fair to say that this subject has had a lot of attention, and on both sides of the Atlantic. The difference is that the GDPR has a pending deadline, and our theme was that if you wait until the deadline expires, you have almost certainly left it too late. When confronted by a problem requiring an understanding of predictive coding, you can engage experts at short notice to help you. The finest GDPR experts in the world will not get you to achieve GDPR readiness overnight. Besides, they are all likely to be rather busy when that day comes in May 2018.

The panel consisted of Sue Knox of Mayer Brown, Will Wilkinson of Yerra Solutions and Dan Cooper of Covington (seen in that order in the picture below with me at the end).


Sue Knox drafted an excellent hypothetical case which touched on many of the points which companies should be considering. We decided to set the discussion in June 2018 to add a note of urgency, and many of my questions to the panel were phrased in the form “What should the company have done in advance to avoid the problems it faces now?”. Continue reading

Posted in ACEDS, Data privacy, Data Protection, Data Security, Defensible deletion, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Fronteo, GDPR, Information Governance, Yerra Solutions | Leave a comment

Interview: Richard Dilgren of FRONTEO talks about RelativityOne

Fronteo_200Richard Dilgren is International Director, Data Science and Strategy, at eDiscovery and analytics company FRONTEO.

On the day I interviewed him at Legaltech, FRONTEO and kCura announced that FRONTEO had become a RelativityOne Certified Partner – the press release is here – and I took the opportunity to ask Richard Dilgren what this means for FRONTEO and for its clients.

The main significance, Richard Dilgren says, lies in the reliability of the Microsoft Azure Cloud. Clients have a unified Portal both for traditional Relativity use and for the web-based, cloud-based databases. In addition, there is significant new functionality, and there are “exciting new tools” coming out, including a plug-in to Office 365.

Quite apart from functionality, the direct connection into Office 365 from anywhere in the world will significantly increase the speed of access.

In addition, the global presence of the Azure Cloud will help clients deal with the increasing issues raised by privacy and data protection constraints around the world.


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Nuix webinar on 1 March: bridging the gap between mobile and computer forensics

NuixAlmost any kind of investigation involves pulling information from multiple sources. Police investigating a crime, journalists following a lead, academics drafting a paper – all of these require examination of different types of source.

The sources multiply in criminal, legal and regulatory investigations. We used simply to collect documents and interview witnesses. Now the sources of evidence are spread across many different devices and data types. Many of these devices are mobile, and the location at any particular time may become a relevant consideration in addition to other data.

Nuix is running a webinar on 1 March called Forensics in a mobile world: bridging the gap between mobile and computer forensics which considers, among other things: Continue reading

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Tchenguiz v Grant Thornton – proper use of the disclosure “menu” and the overriding objective

Nothing new emerges from the judgment of Mr Justice Knowles in Tchenguiz & Anor v Grant Thornton UK LLP & Ors [2017] EWHC 310 (Comm) (22 February 2017), but it restates an important point relating to disclosure of documents in England and Wales.

The key paragraphs are 4 and 5. The emphasis by italicisation below is mine.


4.  The cost and complexity of the disclosure of documents in large-scale commercial litigation continues to attract attention and thought. As a result of the major review undertaken by Sir Rupert Jackson the Civil Procedure Rules now provide, by CPR 31.5(7), a calibrated “menu” of forms of order that can be made in relation to disclosure. This allows disclosure to be tailored to the case or issue in the case. It is a signal development, but awareness and use of it needs to increase so that the opportunities it offers can be made the most of.

5. The overriding objective, at the apex of the reforms led by Lord Woolf, is now found in other parts of the world too. It guides disclosure as it guides the rest of the CPR. Thus the selection from the “menu” at CPR 31.5(7) is to be made “having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly”. And strides continue to be made in relation to how the disclosure that is ordered, including disclosure of electronic documents, can best be carried out: see further CPR 31.5(8) and (9). But again, more could be made of the opportunities here. Continue reading

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Interview: Craig Earnshaw of FTI Consulting on changes in eDiscovery over his long career

fti_consulting_200Craig Earnshaw, Senior Managing Director at FTI Consulting, has been working in FTI’s Technology segment for 10 years and had already spent ten years in the then-nascent eDiscovery and Computer Forensics world before that.

I thought it would be interesting to interview him about the changes which he has seen over that time.

Craig identifies three main changes in his time in eDiscovery. One is what he calls the “frequency of requirement” – the increasing need to look at data on a computer system for any disputes/investigations exercise. Continue reading

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Nuix Insider Conference in London on 23 March

NuixThe annual Nuix Insider Conference takes place in London on 23 March. It is a one-day educational event designed to help users improve their practical knowledge of Nuix, to see the latest features, and to find new ways to use Nuix effectively.

Much of this value comes from Nuix itself, but much of the benefit of going comes from talking to others who face the same problems and challenges as you.

There is a registration form here.


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Two kCura summaries from Legaltech

relativity2016logokCura is very good at producing summaries of discussions and events both as they occur (usually by tweets from David Horrigan) and by collecting and publishing that instant output in summary form.

If I pick two of kCura’s summaries from Legaltech, it is not simply because I happened to appear in both of them although it is always helpful when somebody else collates the things I am actually involved in. As I write this, Michael Gove MP is getting commendations on Twitter for paying full attention during a Select Committee hearing while enthusiastically tweeting about it. I find that difficult.

The first kCura collation is from our panel New frontiers in international eDiscovery. It consists of a series of photographs and tweets of a panel which included Steve Couling and David Horrigan of kCura, Karyn Harty of McCann FitzGerald, Davin Teo of Alvarez & Marsal and me. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Information Governance, KCura, LegalTech, Predictive Coding, Technology Assisted Review | Tagged , , , | Leave a comment

A good launch for Conduent Legal and Compliance Solutions

conduent_200If the hardest thing in marketing is to launch an entirely new start-up business, perhaps the second is to launch a new name and brand for a long-established business. That was the task of Beth Fritts, SVP and Managing Director of Conduent Legal and Compliance Solutions in a presentation at Legaltech. She did it very well.

The vast Xerox Corporation has been split into two. Conduent covers a wide range of business processes and industry verticals, offering (among other things) the application of automation to transaction-intensive processes whether directly for clients or to enable Conduent’s clients in turn to enable their clients. Conduent Legal and Compliance Solutions offers eDiscovery, compliance, analytics and similar functions to corporate legal departments and law firms. Continue reading

Posted in Analytics, Conduent, Conduent Legal and Compliance, Discovery, eDisclosure, eDiscovery, Electronic disclosure | Leave a comment

Looking forward to the British Legal Technology Forum ’17 on 14 March

bltf17logoThe British Legal Technology Forum ’17 brings together people from the legal and commercial technology sectors to discuss the systems, strategies, processes and platforms which will be relevant to law firms and legal businesses in the near future.

Its agenda is divided into five stages which between them cover a very wide range of topics which lawyers, both in-house and in law firms, should be thinking about now. Event sponsors include Epiq/DTI, Brainspace and Neota Logic, as well as a wide range of others whose products and services go beyond eDiscovery.

I am taking part in a panel called Technology for disputes and beyond: where are we now and where are we going? I am the moderator, and the panel members are Ben Gardner, data and information architect at Linklaters and Paula Fearon, senior associate at McCann FitzGerald. Continue reading

Posted in Brainspace, Discovery, DTI, eDisclosure, eDiscovery, Electronic disclosure, Epiq, Neota Logic, Predictive Coding, Technology Assisted Review | Leave a comment

ACEDS panel in London on 2 March: Is the GDPR Europe’s wall?

ACEDS UK chapter is organising a panel discussion in London on 2 March called Is the GDPR Europe’s wall? The speakers are Susan Knox of Mayer Brown, Daniel Cooper of Covington and William Wilkinson of Yerra Solutions. I will be the moderator.

The event is sponsored by Yerra Solutions.

Two subjects dominated my agenda in 2016. One was predictive coding, and that was the topic of the first and very successful event organised by the ACEDS UK Chapter towards the end of last year.

The other was the pending General Data Protection Regulation, due to take effect in May 2018. Our aim on this panel is to discuss how the GDPR will affect eDisclosure /eDiscovery in the UK, both in domestic litigation, investigations and compliance, and where cross-border data transfer is involved. Continue reading

Posted in ACEDS, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Fronteo, Yerra Solutions | Leave a comment

Data protection, TAR and data security dominate my corner of Legaltech

I have already written short holding post about Legaltech (Not yet my Legaltech report) which includes links to posts by others. This article focuses on my own small corner of this vast event. Oh, and yes, I know it was called Legalweek this year.


I wrote before I went (see Off to Legaltech New York for the eleventh time) with a general survey of “Legaltechs I have known” and with mention of some of the things I planned to do. There were new things this year – Bob Ambrogi wrote about them here; like him, I cannot say that the changes made a great difference to my own experience.

Legaltech is a big target and people like to moan, but when you break down the complaints each year most of them appear to be of little substance (one must distinguish between a mere moan and an adverse but nevertheless constructive suggestion). Footfall was down in the exhibit halls, said some, but if this is explained by a charging policy which kept away the “tyre-kickers” whose primary purpose is to scoop up goodies from the booths, then that means more space for those who are there for serious purposes. There is a certain type of marketing person who is fanatical about head counts, as if mere numbers were an indicator of success. The pool of potential buyers relative to attendance headcounts is pretty small and it is better, surely, to have space to focus on those who matter.

Similarly, there is usually much complaining about the timing and location – why, people ask, do we have to go to cold, damp New York at the beginning of February? For myself, I can’t think of anywhere more convenient for a show which aims to attract Asian, Australian and European audiences as well as American ones. Not Las Vegas again, please. Nor one of those warm south-eastern venues which involve three flight changes. The beginning of February has the merit that the show competes with nothing else. It was neither cold nor wet in New York this year which muted the complaints on that score.

It suited me. But then it always did, for one who wants to meet a lot of people and catch up with the ideas which are inhaled almost subliminally by being at the biggest Discovery show on earth. Continue reading

Posted in Alvarez & Marsal, Brainspace, Brexit, Conduent, Consilio, Cross-border eDiscovery, Cyber security, Data privacy, Data Protection, Data Security, Discovery, eDisclosure, eDiscovery, Everlaw, GDPR, Information Governance, KCura, LegalTech, Neota Logic, NightOwl Discovery, Nuix, OpenText, Predictive Coding, Recommind, Technology Assisted Review | Leave a comment

Not yet my Legaltech report (but links to those of others)

You will have noticed (well, I hope you have noticed) that I have fallen silent on this blog for some days. I have similarly been uncharacteristically quiet on Twitter.

The reason, of course, lies in my annual trip to Legaltech (now Legalweek but old habits die hard) in New York. Quite apart from the preparation, the travel, and all the events and meetings at LegalTech itself, I come back with a clutch of business cards to follow-up on, with commitments to write to people I have met and, not least, with the expectation that I will write about the event itself. All that in addition to the stuff that didn’t get done while I was away. I am working my way through all that.

Oh, and the photographs. It often takes so long to get the photographs done that their subjects have visibly aged before I get to them. We overcame that problem this year by not taking very many, not least because my DSLR was doubling as the second video camera in the “studio” we built for ourselves nearby. The only ones we took were of the kCura New frontiers for international eDiscovery panel (when I say “we”, I mean my son Will Dale; I was on the panel, which is not a good vantage-point for picture-taking). Continue reading

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OpenText and Information Governance Initiative webinar today: IG and eDiscovery trends

opentextigi_36This is short notice, but this webinar looks interesting.

OpenText and the Information Governance Initiative join forces to deliver a webinar called Moving from concept to execution today at 1:00pm EDT. The speakers are Bennett Borden of Drinker Biddle, Barclay Blair of IGI and Stephen Ludlow and Hal Marcus of OpenText.

They will discuss IG and eDiscovery trends and developments which came up at Legaltech, together with:

  • New delivery models for e-discovery capabilities that support a comprehensive approach to IG.
  • The relationship between ECM and e-discovery as we mature and build our IG programs.
  • Perspectives on what IG and e-discovery will look like in the near future.

I am not sure you could find a better trio to hear on these subjects.

There is more information and a registration form here.


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Interview: Hal Marcus talks about the benefits of OpenText’s acquisition of Recommind

RecommindOpenTextTowards the end of last year, I interviewed Hal Marcus, Director of Product Marketing at Recommind, an OpenText company, and asked him to explain the benefits of OpenText’s acquisition of Recommind earlier last year.

Hal Marcus said that the acquisition made enterprise analytics from Recommind available to OpenText clients with very large quantities of enterprise content. Armed with the enterprise analytical tools, clients could have an immediate look at data needed for legal or business decisions, for both unstructured data as well as structured data, without having to tender for a dedicated solution or make any special arrangements.

I also asked Hal Marcus about a survey which had recently been undertaken for Recommind by Ari Kaplan of Ari Kaplan Advisors. Ari Kaplan’s approach is to have personal interviews, in this case with partners at major law firms. The survey is here and there is a blog post here about it by Recommind’s Adam Kuhn.


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Off to Legaltech New York for the eleventh time


Some of what I say here will be familiar to long-term readers, but it seems worth recapitulating my reasons for going to Legaltech (as we will all persist in calling it) and why it is interesting and important. Some pictures from past events appear at the end. If it seems egotistical to show ones of me, well, this piece is about why I go. There is a balancing non-egotism in the fact that none of them were by me.

I am off at the end of the week to Legaltech New York. It is now, apparently billed as “part of Legalweek, THE EXPERIENCE”, which, as Monica Bay points out in her article ALM renovates Legaltech New York, is likely to confuse those who may expect the event to take five or seven days. Believe me, three days is quite enough (although, as usual, I am arriving on Saturday and not coming back until Friday).

monicabayMonica Bay (right, at her ALM farewell party in 2015) gives a helpful summary in her article, and the organiser’s website helps explain the formal structure of Legaltech – keynotes, conference sessions, an exhibit hall across multiple floors, demos and many, many meetings, either prearranged or occurring by happy accident. There used to be a big round bench in the middle of the lobby, and one had only to sit there for a few moments before someone familiar passed by. When I first took my youngest son Will, we unpacked and I said “Right, let’s go and find some people”. “Don’t be silly”, he said, “You don’t just wander around New York hoping to bump into people you know”. He soon discovered that, in those few days, in that small block of streets, people that one knew were everywhere. Continue reading

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A personal note as Eddie Sheehy leaves Nuix

es1The earliest picture I have of Eddie Sheehy, taken at an eDiscovery conference in Singapore in 2010 on a panel which I moderated. 

It’s an odd beast the eDiscovery world. Now a multibillion-dollar industry and growing, it somehow retains a sense, if not quite of family, then of a relatively small group of people who have known each other for a long time, and a handful of corporate names which are widely known.

Every so often, news comes along which makes it feel as if the ground is rocking under my feet – a long established corporate name disappears by acquisition; a well-loved character dies or retires; in this case, someone leaves a company with which they have been so closely identified that it is hard to think of them as separate.

Last week it was the news that Eddie Sheehy, long-time CEO of Nuix, had resigned. The company statement is here and I have nothing to add to it. I am an observer of and commentator on the industry, not an analyst or a journalist, and it is not incumbent on me to produce yards of speculation about Nuix and its future place in the market. That is assured anyway, and that is thanks to Eddie Sheehy and the first-rate team he built around him as Nuix moved from a small Australian forensics company to a global player in eDiscovery, cyber security, investigations, corporate intelligence, information governance and pretty well every other field which hangs around the core skills and technology of eDiscovery. Continue reading

Posted in Cyber security, Data Security, Discovery, eDisclosure, eDiscovery, Electronic disclosure, LegalTech, Nuix | Tagged | Leave a comment

Elizabeth Denham, UK Information Commissioner, talks about GDPR and accountability

Shortly after I published my article Information Commissioner’s Office update: GDPR guidance in 2017, I came across the text of a lecture called GDPR and accountability delivered on 17 January by Elizabeth Denham, the UK Information Commissioner, delivered to the Institute of Chartered Accountants in England and Wales in London.

“Information Commissioner”, “data protection”, “lecture” – you are half asleep, aren’t you, even before you get to the words “Chartered Accountants”? That would be quite the wrong reaction to this speech. It is extremely good and clear, striking the right balance between emphasising the burdensome duties of data protection compliance and drawing attention to the positive benefits of getting it right.

I am not going to summarise it for you, just urge you to read it.


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Interview: Nick Robertson of kCura about user input into Relativity design and about the use of analytics

relativity2016logoNick Robertson is Chief Operating Officer at kCura. In this interview, I ask him about the input of users into the design of Relativity and about the increased use of analytics.


Nick Robertson identified some of the things which drive user requests and thence design priorities. It is no surprise that the increase in data volumes is a major consideration, nor is it surprising that investigations are a bigger driver for many customers than litigation. The most interesting point Nick Robertson makes in this context is about the increasing numbers of small to mid-sized matters which are being put into Relativity, and not just at smaller firms. Large firms, used to using Relativity for big, complex and urgent matters, are applying the skills and training to a wider range of cases.

Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, KCura, Litigation, Regulatory investigation, Relativity | Tagged | Leave a comment

DESI VII – seventh workshop on Discovery of Electronically Stored Information – London on 12 June

The seventh workshop on Discovery of Electronically Stored Information, known as DESI VII, will take place in London on 12 June 2017 as part of the 2017 International Conference on Artificial Intelligence and Law (ICAIL).

I know about it because of the major role played in it by Jason Baron of Drinker Biddle & Reath, the éminence grise behind so many data retrieval projects.

The purpose of the workshop is to provide a platform for discussion about the use of advanced search technology, text classification, language processing, data organisation, visualisation and related techniques for the purposes of accessing and managing electronically stored information. Continue reading

Posted in Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, GDPR | Tagged | Leave a comment

Information Commissioner’s Office update: GDPR Guidance in 2017

The Information Commissioner’s Office is the UK member of the Article 29 Working Party, the EU body charged with implementing and enforcing data protection across the EU.

The ICO gave significant input into the development of the General Data Protection Regulation which will take effect in May 2018. Since that implementation date was announced, various things have happened which have altered the UK’s position.

The first, of course, is the UK’s referendum decision in June 2016 to leave the EU. The ICO, like the rest of us who comment on these things, emphasises that the GDPR will affect the UK firstly because (on any estimate of the timetable) the UK will continue to be a member of the EU in May 2018 and thus bound to implement GDPR like everybody else, and secondly because we would need to comply with its essential terms in order to be an acceptable conduit for EU data, whether for everyday business purposes or for the eDiscovery which is the primary focus of this blog. Continue reading

Posted in Brexit, Cross-border eDiscovery, Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Ireland, NightOwl Discovery | Tagged , | Leave a comment

Recommind webinar today: analysing emails in three easy steps

recommind-now-opentext-135Recommind (now OpenText) is presenting a 30 minute webinar today, 18 January, at 10am PST / 1:00pm EST to show the use of its Axcelerate discovery programme to analyse emails in three key steps.

The speakers are Alexis Mitchell, Principal Data Scientist, and Adam Kuhn, Product Marketing Manager, OpenText Discovery (formerly Recommind)

There is more information and a registration form here.


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Supporting witness memory with the electronic evidence trail

Oh Lord, you will say. He’s only just given us one of his periodic lectures on the importance of understanding the trail of electronic evidence we all leave behind us. Can’t he give us a break for a few weeks?

Last Friday, I published an article called Finding the evidence for hot tub murder and the red-headed children of Greendale. Its purpose was to re-state my frequent reminder that most of us leave an electronic trail which, while not necessarily proving what we were doing or saying, or showing where we were (or were not) at a particular time, creates a presumption which may either support our recollections or undermine them.

The following day, Gordon Exall published on his excellent Civil Litigation Brief an article called Lawyers, litigation and memory: the Memory Illusion. It refers to a book by Dr Julia Shaw called The Memory Illusion: Remembering, Forgetting and the Science of False Memory. Gordon Exall explores the factors which influence the recollection of a witness, including the potential bias of loyalty – the “desire to assist, or at least not prejudice, the party who called the witness or that party’s lawyers” – as well as the effect of the litigation process on recollection. Continue reading

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Ralph Losey: the top 22 most interesting [US] eDiscovery opinions of 2016

As I sit contemplating collecting together the 2016 eDisclosure-related judgments from England and Wales, I have to admire Ralph Losey who kicked off the year with a 30,000+ word essay on the Top 22 most interesting US eDiscovery cases of 2016.

Whether you read it all at once or keep it as a (well hyperlinked) work of reference, it is an immensely useful collection of judicial opinions on a subject which continues to dominate US litigation.

Top of Ralph Losey’s list is US Magistrate Judge Andrew Peck’s decision in Hyles v New York City in which he declined to order an unwilling party to use technology-assisted review – I wrote about that decision here, concluding that a UK judge faced with similar facts might well feel entitled to make such an order because of the rather different principles which apply in England and Wales. Continue reading

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Interview: Jeffrey Seymour of Morae Legal talks about RelativityOne and corporate cloud adoption

relativity2016logoWhile I was at Relativity Fest, kCura introduced me to Jeffrey Seymour of Morae Legal, and I talked to him about Morae Legal’s work with corporate legal departments and about kCura’s RelativityOne and corporate cloud adoption.

Jeffrey Seymour says that Morae Legal’s aim is to help corporate legal departments with information management and discovery. Continue reading

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Finding the evidence for hot tub murder and the red-headed children of Greendale

A murder case in which a voice-activated device may hold the vital clue prompts one of my periodic reminders that potentially-discoverable data lurks in an increasing number of devices and databases, often without our realising it. And just how long did Postman Pat take on his delivery round?

David Horrigan of kCura gives us an interesting article (Murder, Data Privacy and the Internet of Things) about a lads’ evening which ended with one of them floating face down in the hot tub. As David put it, the survivor went from “hot water literally to hot water figuratively” as the police proceeded with their procedures and made their enquiries.

The only potential witness was a tall slim figure called Alexa (well, strictly called Amazon Echo, but generally addressed as Alexa). Did Alexa hear anything which might help the police? David Horrigan points out that the Amazon Echo does not itself store data – that sits in Amazon’s cloud. As Craig Ball says in his comprehensive and interesting article The Internet of Things meets the four stages of attorney e-grief), you go for the database not the device in these circumstances. Amazon is refusing to comply with a request for the records.

I do not need to summarise either David Horrigan’s article or Craig Ball’s – they are both well worth reading anyway. I use the story as a mounting-block for my regular hobbyhorse: are you remembering all the potential sources of electronic data when you consider what evidence exists and what to collect? You won’t collect the evidence if you don’t think to look for it. Continue reading

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From pillar to post – the eDiscovery conferences at the end of 2016

If I did not write up each of the conferences and events of the closing months of 2016 as they happened, that is only partly because the end of each one seemed merely to herald the preparations for the next. Aggregating them in a single post, as I do here, has two virtues – it saves your time and mine, and it helps to point up the diversity of the subject matter which now falls under the broad heading of eDiscovery.

“Stories of Data” with Nuix

The last event which I wrote up in full was the Nuix User Exchange in California in September. My post Panama Papers and Data Protection at the Nuix User Exchange is here. There are two follow-up points, one of which is that the Nuix User Exchange 2017 runs from 17 to 20 September 2017, again at Huntington Beach. There is an early bird rate applying until 20 January and you can register here.

The other is the result of the “Stories of Data” competition which Nuix announced at the User Exchange. One of the Nuix themes is that data tells stories, and the competition was to encourage people to tell their stories about using data in an investigation. I was asked to pick the winner and my commentary is here. Continue reading

Posted in ACEDS, Brexit, Cross-border eDiscovery, Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Epiq, GDPR, KCura, Predictive Coding, QuisLex, Relativity, Relativity Fest, Technology Assisted Review | Tagged , , , , , , , , | Leave a comment

Interview: Richard Dilgren of FRONTEO talks about the increase in applying analytics to eDiscovery

Fronteo_200Richard Dilgren is VP Data Science and Strategy at eDiscovery provider FRONTEO. I talked to him at Relativity Fest about the use of applied analytics in eDiscovery (the interview is below).

Email threading, he says, has become “ubiquitous” on large matters and enquiries about technology-assisted review have substantially increased. FRONTEO is seeing many more requests for customisation than hitherto which implies increased awareness on the part of clients.

Richard Dilgren says that FRONTEO spends a lot of time promoting the advancement of technology, and that this helps explain the increase in both interest and awareness on the part of clients. Clients seem to be informing themselves ahead of the use cases which they anticipate.

The increasing use of technology inevitably drives an increase in the number of challenges from opposing counsel. Richard Dilgren says that the most frequent challenge stems from the fear that opponents will not be able to search the content. FRONTEO helps people meet those challenges by talking to opposing lawyers and their vendors to overcome their objections.




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Xerox Business Services becomes Conduent

conduent_200With effect from today, Xerox Business Services completes its separation from Xerox and becomes Conduent, an independent public company trading on the New York Stock Exchange.

The announcement is here and there is a video here.

Conduent offers business process services in transaction processing, automation, analytics and related subjects. This covers compliance and risk solutions, eDiscovery management and a wide range of litigation review, management and consulting services.

The master webpage for these services is here with links to, among other things, the OmniX Hosted Review Services, the Relativity Hosted Review Services and the Viewpoint All-In-One Platform.

The always excellent eDiscovery and Compliance blog can be found here.


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Wishing you all a Happy Christmas and a Prosperous New Year

Time to draw stumps for the year, not because I don’t have more to write, but because I doubt there are many people around to read it if I did.


This is “our” robin, known for obvious reasons as “Fat Robs”, the most seasonal picture I took this year (albeit in early summer).

Thank you for (as the case may be) sponsoring, reading, talking, listening, sharing platforms and following on Twitter during the year.

Wishing you all a Happy Christmas and a Prosperous New Year. I think we can assume that it will be an interesting one.

Chris Dale


Posted in Discovery, eDisclosure, eDiscovery | 2 Comments

My SCL predictions for 2017 – the snarling of a cynical old hack

scllogo1Computers & Law, the online presence of the Society for Computers & Law, asks every year for our predictions for the following year.

Most people, quite properly, use this opportunity to give straight-up-and-down ideas of where we are going and what we might expect. I do that all year anyway, and use this opportunity to inject some seasonal cynicism into the business of prediction.

eDiscovery / eDisclosure does not operate in a vacuum, although some of its practitioners behave as if it were a free-standing virtue, detached from everyday business. It sits in a context of disputes, investigations and regulatory compliance, and there is more than enough of that around to keep everyone busy. If asked, as I am from time to time, what future I see for those with eDiscovery products, services and expertise, I am optimistic, whether they are providers of such things or lawyers who practice with them. Continue reading

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FTI stored webinar: Predictive Coding, Building User Confidence

FTI LogoThat long empty period between Christmas and New Year is a good time to catch up on webinars and other things which take time you may not have during the rest of the year. I have the answer for you.

FTI Technology keeps a large and very good store of webinars and other resources which are available on-line. One of the significant themes of 2016 has been predictive coding and I commend to you a webinar given by FTI’s Jason Ray earlier this year.

It is called Predictive Coding, Building User Confidence and is well illustrated (in line with FTI’s strong emphasis on graphics). As its title implies, it is designed to help lawyers and others be confident in technology of this kind when considering how to approach the large volumes, tight deadlines and budget constraints we will undoubtedly face in 2016.


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Patrick Burke of Seyfarth Shaw on corporate readiness for the GDPR and Privacy Shield

Patrick Burke and I have been speaking together about privacy and data protection since back in the days when US corporations and lawyers saw these subjects merely as irritations. Patrick is now eDiscovery Counsel at Seyfarth Shaw and things have changed, as I discovered when I interviewed him at Relativity Fest recently.

Continue reading

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Interview: Scott Berger of Epiq on tailoring managed services to client needs

Epiq_logo_200Scott Berger is Senior Director at Epiq. In this interview I asked him to explain what Epiq means by “managed services” and to give me an example of an implementation which worked for the benefit of the client.

There are many elements in an eDiscovery service and in individual projects. With applications, infrastructure and the support wrapper given by skilled people, the whole thing involves risks and unknowns. Managed services is a common business practice in other areas of corporate activity. Continue reading

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Guidance Software’s Enfuse 2017 – Early Bird Discount closes on 6 January

enfuse2017Guidance Software’s Enfuse Conference takes place in Las Vegas from 22 to 25 May 2017. Enfuse covers all aspects of security and digital investigations across three days.

I have been going for many years (I did three panels there last year) and it is always one of the most interesting events of the year, not least for its combination of technical, legal and business subjects covered there.

The reason for writing about it now is that the Early Bird Discount expires on 6 January. The saving is significant and you would do well to catch it now.


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FRONTEO plans expansion into the Chinese market

Fronteo_200FRONTEO, which specialises in global eDiscovery and big data analysis services using AI, has signed a memorandum of understanding with Idea Capital Group in order to expand FRONTEO’s eDiscovery services in China. There is a press release about this here.

FRONTEO has a lot going for it, both as to the market in China and as to its own experience. One of the measures of growth is the number of patent applications filed each year; more than 1 million were filed last year and this alone is seen as a source of prospective litigation, quite apart from other commercial and industrial developments in China. Continue reading

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Xerox Legal Business Services brings oversight and platform choices to corporate eDiscovery

XeroxThis is the time of year when we are all asked to say what were the important developments of 2016 and to look forward to 2017. In a year which has brought further judicial approval of predictive coding, the beginnings of mainstream acceptance of artificial intelligence, and significant developments in privacy and data protection, the trend at the top of my list is greater oversight of eDiscovery by corporations.

Xerox Legal Business Services (to be part of Conduent from 3 January) ) is particularly well placed to offer the kind of overview which corporations need. XLS has offices throughout the US, Europe and Asia. With offices throughout the US, in Europe and in Asia, it has long been a significant provider of hosted eDiscovery services using its own technology, and now offers Relativity as a managed service alongside its own Viewpoint All-in-One eDiscovery Platform. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Xerox Business Services, Xerox Legal Services, Xerox Litigation Services | Tagged | Leave a comment

Doing a keynote with Judge Peck at the AccessData 2017 User Summit in San Diego

ACCESS-DATA-logoThere is of course much more to the AccessData 2017 User Summit than the keynote referred to in my heading, but that is what I am chiefly going there for, so I will put it at the top.

adusersummitThe AccessData 2017 User Summit runs from 16 to 19 May at the Catamaran Resort Hotel next to the beach on San Diego’s Mission Bay. Judge Peck and I are opening the day on Thursday. We will wait and see what the beginning of 2017 brings us before deciding on our topics – one of the joys of doing these things with Judge Peck is that you can throw him anything, from predictive coding to rules changes to cross-border discovery and everything in between, and know that you will get an interesting and informed response. Continue reading

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All-in-one review and processing solution from Nuix and iCONECT

nuixiconectIn New York last February I interviewed Eddie Sheehy, CEO of Nuix, and Ian Campbell, President and CEO of iCONECT, about their plans for closer integration. The interview is below.

The integration continues, both as a technical matter and in marketing terms, as this page from the Nuix website shows.

Everyone benefits from this arrangement – not just Nuix and iCONECT themselves, who find in each other complimentary qualities without much overlap, but for legal service providers, project managers and lawyers who are the end users. Continue reading

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Recommind: a confident tone as the OpenText acquisition beds down

RecommindOpenTextIn October I interviewed Simon Price, UK managing director of Recommind, when he sounded a confident note both about the benefits of Recommind’s acquisition by OpenText and about the wider context of cloud adoption of software for eDiscovery and for wider data management purposes. You can find that interview here.

That confident tone continues in a report of an interview with Simon Price on Legal IT Insider published on 23 November and headed Recommind: strategy and a change of direction?

Among the things reported there is that a couple of deals have already been made among existing OpenText clients. This was an important part of the OpenText rationale for acquiring Recommind and it is clear that no time has been wasted in introducing Recommind’s benefits to OpenText’s large client base. Simon Price says that Recommind “delivered double-digit growth to OpenText in our first quarter”.

Simon Price talks also about Recommind’s appointment of Legastat as its first ever Axcelerate cloud partner in the UK disclosure market, a deal which, as the Legal IT Insider article observes, “implies that OpenText are not going to kill off eDiscovery”. I have to say it did not enter my head that they might. Continue reading

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Interview: Karyn Harty of McCann FitzGerald on the Brexit implications for Ireland

karynhartyI did a predictive coding panel with Karyn Harty of Dublin-based firm McCann FitzGerald while we were at Lawtech Europe Congress in Brussels recently. It seemed an appropriate place to ask Karyn Harty for her view on the implications of Brexit for Ireland.

Karyn makes it clear the membership of the EU is crucial to the Irish economy and that there is no appetite in Ireland to leave the EU. The adverse economic consequences will be significant. There are, however, opportunities in, for example, financial services, and we are likely to see insurance companies and others move out of London; Dublin must compete with Frankfurt, Paris, Amsterdam and Luxembourg. Karyn also identifies an opportunity in an energy link between Ireland and France which may not previously have been considered.

There are also opportunities relating to the handling of data if Brexit happens – Ireland has a highly-educated English-speaking population and is already home for many international technology companies for good reasons which go well beyond tax-related ones. Continue reading

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Interview: Meribeth Banaschik of Noerr talks about setting up an in-house legal team

relativity2016logoMeribeth Banaschik is a US attorney at Noerr LLP in Düsseldorf, Germany. She is also qualified as a solicitor in England and Wales, so she has a wider range of qualifications than most.

I interviewed her at kCura’s Relativity Fest in Chicago, asking her about her experience in setting up in-house eDiscovery teams. The interview is below.

The ambition, Meribeth said, was to turn a cost centre into a profit centre. After analysing the steps in the typical discovery process, including vendor selection and project management, and by taking small steps, the team developed an in-house legal hold expertise, as well as processes for collections, early case assessment and other stages.

It is not just large organisations with much litigation who could benefit from this, Meribeth Banaschik says. Mid-sized organisations can also benefit, not only for disputes work but for contract management, compliance or audit. The skill set, she says, is much the same.

kCura’s staff were extremely helpful in the early stages of the project, Meribeth says, helping through “complicated times” and giving confidence to those building the process.



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Webinar from ACEDS and iCONECT on 19 December: selecting your next eDiscovery review platform

XERA_logoweb_225pIan Campbell of iCONECT and Jeff Kirksey of Sutherland Asbill join forces with ACEDS to produce a webinar on 19 December called It’s time for a change – selecting your next eDiscovery review platform is easy.

iCONECT is, of course, the owner and maker of the iCONECT-XERA document review platform, and Ian Campbell won’t mind a bit if the upshot of this webinar is that you choose XERA for your next project.

The subjects covered, however, are ones which must be objectively considered by all potential users of any eDiscovery tools – licensing, pricing, total cost of ownership, innovation, market longevity and product support are all referred to in the webinar description as important factors.

There is more information and a registration form here. Continue reading

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William Butterfield dies: eDiscovery education will miss him

billbutterfieldI am sorry to see that Bill Butterfield has died, depriving his firm, Hausfeld LLP, and the wider eDiscovery world, of a highly-respected and well-liked speaker and educator.

I did not know him well, but he is one of those who made me welcome in the US eDiscovery scene from my earliest forays across the Atlantic.

Whenever we met, he suggested that we try and do something together but, as with so many such ideas, it never came to pass. I was sorry about that before his death, and even more sorry now.

The Sedona Conference has a tribute to him and there is an article here from Legaltech News.


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FTI webinar today: International data privacy – litigation and investigations in 2017 and beyond

FTI LogoI must have missed earlier announcements about this webinar, but it looks interesting and it is today, so I hasten to direct your attention.

FTI Consulting has joined forces with Bloomberg to produce a webinar called The changing international data privacy landscape – litigation and investigations in 2017 and beyond. Its theme is that changes and prospective changes like Brexit, the US presidential election, the Privacy Shield and the GDPR will all have effect on the way US corporations manage their data beyond US borders, specifically in the EU, the UK and the Asia-Pacific region.

Not all these things have happened yet, but the time to start dealing with them is now. The webinar will consider, among other things: Continue reading

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

Technology-assisted review in Australia – two cases and a Practice Note all worth considering elsewhere

Australia has now joined the common law jurisdictions in which courts have permitted the use of technology-assisted review and got involved in prescribing the mechanics. In one case it was the judge who was the first to raise the subject. The courts of England and Wales have a right and duty to manage cases actively, and a wide discretion to do what is right. The judgments of respected foreign courts can be persuasive.

Much of my time this year has been spent on the commonality between jurisdictions when it comes to the use of technology in civil litigation. The high point, perhaps, was my panel at kCura’s Relativity Fest where we brought together US Magistrate Judge Peck with the US perspective, Karyn Harty of McCann FitzGerald for Ireland, and Ed Spencer of Taylor Wessing and Dan Wyatt of RPC for the view from England and Wales.

Relevant cases from each of these jurisdictions called upon prior cases from other jurisdictions in considering whether it was appropriate to use technology-assisted review / predictive coding to narrow down the set for discovery / disclosure. The general sense is that this technology is increasingly acceptable in an appropriate case (and one must stress that the nature of the case matters in all these jurisdictions).

Now Australia has joined in, with two cases from Victoria together with a Practice Note of the Supreme Court of Victoria which covers the use of technology-assisted review as well as other matters related to technology.

I do not intend to give a deep analysis of either the judgments or the Practice Note. It suffices to point you to them, to a useful summary by Allens called Predictive coding gets green light from an Australian court, and to an article by Angela Bunting of Nuix called Technology Assisted Review Heating Up in Australia. Continue reading

Posted in Australian courts, Discovery, eDisclosure, eDiscovery, Electronic disclosure, FTI Technology, Predictive Coding, Technology Assisted Review | Leave a comment

Corporate Counsel Round Table 2017 on 30 January in New York

For the last two years I have taken part in a Corporate Counsel Round Table developed and run by William Belt, now at CDS.

I am very pleased to have been asked to do it again in January in the soberly impressive premises of the Yale Club of New York City in the Vanderbilt Avenue.

The agenda will include presentations on the new Federal Rules of Civil Procedure, a case law update, a judicial panel, and a corporate only, directed thought-sharing session. As always, this event is for corporate registrants only and will be a no-selling confidential gathering. Continue reading

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Lawrie Hall of CYFOR talks about using technology to help meet deadlines in eDiscovery

Disclosure failures in the courts fall into two main categories – either someone has failed to read the rules properly or a deadline has been missed, usually because the work involved was underestimated.

In this short video, one of a series given by CYFOR, Lawrie Hall, Head of Case Management at CYFOR, talks about how modern technology can be used to help lawyers comply with deadlines.

Continue reading

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Guidance Software webinar on 14 December: where InfoGov meets InfoSec – new approaches to data-centric security

GuidanceSoftware_200One of the presenters of this Guidance Software webinar is Barclay Blair, founder and Executive Director of the Information Governance Initiative. It is clear before you start reading about it, therefore, that the webinar will involve more than pure technology, since Barclay Blair is a long-time advocate of proper governance, information and control of corporate data.

The other speaker is Paul Shomo, Senior Manager of Strategic Partnerships at Guidance Software. Between them, the speakers will look beyond perimeter-based data breach and at how Chief Privacy Officers and Chief Information Security Officers can work together to safeguard personally identifiable information, non-public information and sensitive corporate data. Continue reading

Posted in Cyber security, Data Protection, Data Security, Discovery, eDiscovery, Guidance Software, Information Governance, Information Governance Initiative | Tagged | Leave a comment

Fronteo acquires Essential Discovery, Inc. and produces a new ROI Analyser

Fronteo_200Fronteo has been busy while I have been away at the autumn’s events, not least with a client testimonial video called Great Achievements filmed with Time Warner Cable

during the summer.

Fronteo has acquired Essential Discovery, Inc., a boutique discovery company specialising in document review. Essential Discovery has review centres in San Francisco and Las Vegas together with what they call “pop-up capabilities” across the US and internationally.

The acquisition reflects the growing demand for “efficient, reliable and cost-effective review services” allowing the combined companies to offer increased value to law firms and corporations with standardised review processes.

The combination of Fronteo and EDI now has approximately 1,300 permanent seats for review projects across the US with others available internationally for cross-border projects. Continue reading

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Interview: Phil Favro talks about CTRL’s initiatives on TAR and Information Governance

CTRL2CTRL is an industry forum dedicated to advancing the discussion on the use of technology and analytics in the practice of law. Its sponsors include Relativity and Recommind (now OpenText)

At Relativity Fest I interviewed Philip Favro of both eDiscovery provider Driven and of CTRL, and I asked him about the relationship between CTRL and kCura and about CTRL’s work.

Phil Favro said that kCura has invested resources and time into CTRL’s work on the extension, proliferation and use of advanced analytical technologies. That relationship has helped with the education of organisations and lawyers on the benefits of analytics and on how best to use analytical technology.

Phil Favro talks about the 2016 TAR Guidelines and the Information Governance Playbook which CTRL has published. The TAR Guidelines address complex issues such as whether you should disclose your use of TAR, the protocols made with opposing counsel, and subjects like the blending of search terms and TAR. Continue reading

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

Epiq and DTI: better together

Epiq_logo_200I reported in August that Epiq had been acquired by OMERS Private Equity and Harvest Partners and that it was to be brought together with DTI to make a new and very large technology and services provider.

The extent of the breadth and depth thus offered, and particularly the geographical spread, is illustrated by an infographic in an Epiq post called Epiq and DTI: Better Together.

With 100 offices around the world and 12 data centre locations, the combined business provides a full range of services relating to litigation, investigations, financial transactions, regulatory compliance and other legal matters, for eDiscovery, class-action, general legal process outsourcing and a range of other business services. Continue reading

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Eaglesham v MoD attracts US attention in Seyfarth Shaw’s blog

The US has not hitherto taken very much notice of eDiscovery / eDisclosure developments outside the US, but that is beginning to change. That is partly because of the predictive coding decisions – the Irish Bank Resolution case from Ireland, and the Pyrrho and BCA Trading judgments from England and Wales. There is a growing US interest also in competence when it comes to discovery, and in the incurring of unnecessary costs through failure to cooperate or in the manner of giving discovery.

It is the latter aspect which caught the eye of Patrick Burke of Seyfarth Shaw in an article on his firm’s new and rather good Carpe Datum Law blog. The article is called UK Ministry of Defence Loses Landmark Afghan Veteran Case Due To Sloppy E-Disclosure. He anticipates US interest in Eaglesham’s complaint that:

“[T]he documents were provided in random order, with no explanation as to where they have come from, no explanation of the context in which they were prepared, and no explanation of the acronyms/abbreviations used in them…There has been no attempt by the Defendant to give even a broad range of dates or details of where the undated documents were found or which department they came from.”

Continue reading

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The Sedona Conference International Programme on Cross-Border Discovery and Data Protection – 20-21 June 2017 in Dublin

SedonaOne of the most useful events which I attend every year is The Sedona Conference International Programme on Cross-Border Discovery and Data Protection Laws.

Last year Sedona Working Group 6 met in Berlin, an appropriate setting partly because of Germany’s leadership in EU data protection and partly because of Berlin’s reminders, in memorials all around the city, of the need to protect personal information. I wrote about that in an article after last year’s WG6 meeting called From Himmler to Theresa May to Trump to Microsoft + LinkedIn: why we need data protection.

The year before that the programme was held in Hong Kong in recognition of the growing spread and importance of data protection in the Asia-Pacific region.

The Sedona Conference has just announced that the 2017 Programme will be held in Dublin on 20-21 June 2017. I am just returned from an event in Dublin, where much of the talk was of the implications of the General Data Protection Regulation and of Brexit. Continue reading

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Interview: Kelly Atherton of NightOwl Discovery talks about increasing client interest in analytics for eDiscovery

NightOwlKelly Atherton is Senior Analytics Review Manager at NightOwl Discovery. I interviewed her at Relativity Fest about her work and about the trends which she is seeing. The interview appears below.

Kelly Atherton’s role includes helping to integrate workflows and analytics, advising and training clients, and working with NightOwl’s client services team.

She says that clients are showing ever more interest in the use of analytics – not very long ago, it was hard to get them interested in things like email threading, but that is now normal and clients expect it.

Acceptance of predictive coding has been slower but, increasingly, clients are seeing savings of up to 50% on their reviews and are, in consequence, keen to adopt. Outside counsel are being driven down that route by the clients. Continue reading

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Interview: Ed Spencer of Taylor Wessing on choosing and getting approval for the use of technology

Ed Spencer is the associate at Taylor Wessing who took the initiative in proposing the use of predictive coding in the Pyrrho case. He took part in a panel which I moderated at Relativity Fest in Chicago, and I took the opportunity to interview him.

I have already interviewed him about the Pyrrho case itself and used this interview to follow up a slightly different point – how did he find out about the technology in the first place and how easy was it to persuade others, such as partners and clients, to use it? The focus hitherto has been on his discussions with the other side, but there was presumably a hearts and minds exercise to be conducted first with within the firm and with the client. Continue reading

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One more conference and I can get back to some work

You may have noticed an increase in the number of posts on here recently. That is not entirely to do with the frequency of things to write about (although a couple of UK cases this week were a bonus); it owes as much to the fact that I am coming to the end of the autumn’s events. Two more will have dropped off the calendar after this week and, odds and ends apart, I am done until Legaltech in February and can get on with other things.

There were supposed to be three events this week, with a day trip to Frankfurt on Tuesday to do an eDiscovery Q&A with David Wallack, General Counsel at NightOwl Discovery. That fell foul of a strike by Lufthansa, who cancelled my return flight and offered me one the following morning…. Continue reading

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Guidance Software webinar on 30 November – 3 Ways To Accelerate Remote Digital Investigations

GuidanceSoftware_200Guidance Software is producing a webinar tomorrow, 30 November, with the title 3 Ways To Accelerate Remote Digital Investigations.

It is based around the capabilities of Guidance Software’s EnCase Endpoint Investigator and deals with the issues which arise when the workforce is increasingly decentralised, working off the organisation’s network.

There is more information and a registration form here.


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Nuix webinar on 1 December: the tipping point of new technology in discovery

NuixNew technology for collaboration, communication and productivity turns up at both ends of the discovery process – not just in the ever more sophisticated tools for managing discovery documents but in the proliferation of new tools, data sources and data types used by businesses and individuals.

All discovery jurisdictions have a definition of a document similar in effect to that in the Civil Procedure Rules of England and Wales – “anything in which information of any description is recorded”. The new apps which people start using today become the sources of discovery data of tomorrow, raising all sorts of practical as well as legal considerations. Continue reading

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Application for early specific disclosure was driven by hope of tactical advantage

For the second time in a week I am obliged to Gordon Exall of the Civil Litigation Brief for a link to a new disclosure case.

The case is GEM Environmental Building Services Ltd v London Borough of Tower Hamlets & Anor [2016] EWHC 3045 (TCC) (28 November 2016). The underlying facts involved procurement, and there is a defined approach to procurement cases in Roche Diagnostics.

The opening paragraph of Coulson J’s judgment begins, unpromisingly for the claimant, by saying “The underlying point of principle is the claimant’s potential misapplication – even abuse – of the approach to early specific disclosure in procurement cases” in Roche. If the judge refers to “abuse” in the first line, it’s barely worth waiting for the conclusion. Continue reading

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Interview: Karyn Harty of McCann FitzGerald on the differing tests for discovery completeness

karynhartyKaryn Harty is the partner at McCann FitzGerald in Dublin who fought successfully for the use of predicting coding in Irish Bank Resolution v Quinn.

She was one of the participants in a panel which I moderated at kCura’s Relativity Fest in Chicago recently. Our purpose at that panel was to compare and contrast the approaches taken in the US, in Ireland and in England and Wales. We looked not just at the use of technology like predictive coding, but also at the rules, the attitudes and the culture which surrounds the decision-making.

In this video, Karyn Harty talks first about the differing tests saying (I think rightly) that Ireland has the toughest test of all civil law jurisdictions as to whether discovery / disclosure is complete or not.

Continue reading

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Eaglesham v The Ministry of Defence – defence struck out for disclosure failures

I am fortunate that both Gordon Exall, in his excellent Civil Litigation Brief, and Professor Dominic Regan (his training website is here), tip me off about cases which are either about disclosure or which (harder to spot) have a disclosure element in them.

I am less lucky in that writing immediately about such things  does not sit easily with the events (and consequent preparation and travel) which always fill the autumn diary. I have only one more week of that to go (hurrah), and can start working my way through the backlog. As an earnest of good intent, here is the judgment in Eaglesham v The Ministry of Defence, published earlier this week.

Gordon Exall has already written about this with his customary zeal and promptness, and has extracted the key paragraphs which matter from a procedural point of view. I will focus on the pure discovery points.

The context is that the defendant ministry had not complied with the terms of an earlier disclosure order and was up against the deadline of an Unless Order under which the defence would be struck out and judgment entered for the claimant if disclosure was not given by 21 October 2016. The application for relief from the sanctions was issued only the day before that deadline.

The judgment is not long and I recommend that you read it for yourselves. The points particularly relevant to disclosure include the following: Continue reading

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Interview: Benjamin Kennedy of NuLegal – Nuix and machine learning in the cloud

NuixWhile I was at ILTA, Angela Bunting, VP eDiscovery at Nuix, introduced me to Benjamin Kennedy of Australian services provider NuLegal. NuLegal have made interesting use of Nuix entirely in the cloud and I asked Benjamin Kennedy to tell me about it.

Most of NuLegal’s work is for eDiscovery and investigations together with electronic trial business. Benjamin Kennedy says that NuLegal has all its infrastructure in the cloud, with no hardware in its offices. It has a large Nuix environment, and among the benefits of the AWS cloud is that NuLegal do not have to worry about how much drive space they have at any one time or whether the machines are running at full capacity. They just expand their AWS use for as long as extra capacity is needed, allowing them to undertake more processes in parallel. Continue reading

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