Ireland’s Legal Tech Conference 2022 on 29 November in Dublin

I have good memories of the eDiscovery / legal technology events which I attended in Dublin over the years. This was partly because the host jurisdiction was so interesting – law firms who used technology properly, discovery rules which provoked serious discussion, the presence of global tech businesses, and an interesting data protection context – all made for good discussions. It was partly because Dublin and Ireland are fabulous places for post-event tours.

It was also because the organisers worked so very hard to make programmes interesting and informative. Adrian Kiernan and La Touche Training have been consistently excellent in producing these events, and I am sorry to have missed the more recent ones.

That includes the one coming up on 29 November at Croke Park, Dublin. I was invited to take part but will not, alas, be there. The programme is hereContinue reading

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AI and Data Management lead the story at Relativity Fest

Years ago, every player in the eDiscovery market would try and launch something new at big events, drowning out the announcements of rivals with new product releases just as we were all unpacking and getting over our jetlag. Those of us who were expected to comment on it all would shelter in the bars asking each other if we’d seen anything new, before emerging to a fresh blizzard of press releases and to eager hands plucking at our sleeves to come see their demo.

It is rather better now, at least when the bigger players hold their own events. They can afford to see their clients as long-term companions on the road rather than as casual punters to be mugged for a quick sale. Big events are an opportunity for companies to give a round-up of the year’s developments and successes, and a preview of what is to come.

This week’s big event is Relativity Fest, taking place, as it always did, in Chicago. The venue has changed to reflect the increasing numbers of people wanting to attend, despite the fact that much of the content is available online. I wrote about it here, with my pick of the sessions which seemed most interesting. The crowds have gathered, and we now have CEO Mike Gamson’s review of recent progress, current ambitions, and future plans. Continue reading

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A full agenda at Relativity Fest from 26-28 October in Chicago and online

There is an old expression about the retired war horse who, hearing the sound of a distant battle, paws the ground and pricks its ears, excited at the recollection of past engagements.

That is rather how I feel about Relativity Fest, due to open in Chicago on 26 October. For many years, I went every year before Covid and lockdown made that impossible. Good things came out even from Covid, as Relativity and others worked very quickly to transfer the events to a virtual format. For one thing, the potential audience widened enormously as it became possible to “attend” without needing flights and hotels. Nevertheless, something was lost for those of us who enjoy the face-to-face element of events.

Now Relativity Fest is back as a fully live event, taking place in Chicago from 26-28 October with virtual access to breakout sessions, keynotes, and networking events. The website is here.

However good the virtual access is (and Relativity is by now well practised at delivering its event content online), it cannot give the things I miss most – Chicago itself with its architecture and restaurants, meeting old friends as well as the full content in the sessions which is the main reason for bringing us all together.

There is, as always, a lot to choose from. The Sessions Catalogue has several tracks covering (among other things) Relativity product education, legal and industry education, compliance and surveillance, and developer resources. There is a focus, expanded from previous years, on community and culture and, of course, networking events.

What catches my eye as I look down the schedule? Taking them in the order in which they are listed: Continue reading

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Wrapping up two UK disclosure cases which caught the public eye

I always appreciate cases about disclosure which attract the attention of the mainstream press. They remind us all, including those with no present thought of litigation, of the duties which arise in relation to the preservation of documents and data.

I have written more than once about two such cases – the solicitor who told his clients to “burn” a messaging app, and the high-profile libel action between Rebekah Vardy and Coleen Rooney. Both reached their conclusions last week. Continue reading

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Farewell to Charles Christian, who brought legal technology to lawyers

There are people you hardly ever see but with whom you nevertheless feel connected. I “knew” Charles Christian for about 30 years but we met only a handful of times, usually at events where there was no time for conversation. We bumped into each other in London, in Prague, and at US events, and once, randomly, in a London cafe. We trod different parts of the same field for all those years without being particularly close. Now he is dead, and I feel strangely bereft. Perhaps part of that is that feeling one gets as one’s contemporaries start dropping off the tree.

Charles Christian chairing a legal technology conference in Prague in 2012

Charles was one of the first to leave the law and turn to technology, and specifically technology applied to legal practice. His regular magazine, quickly known as “the Orange Rag” became essential reading for would-be buyers of legal technology as well as for rivals seeking information about an industry which grew quickly from nothing to a worldwide multi-billion turnover business. It was specialist journalism of the highest order, and remains so in the hands of Caroline Hill who became Editor-in-Chief some time ago. It was her tweeted article Rest in peace Charles Christian, the godfather of legal technology which broke the news of Charles’s death. Continue reading

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Interlocutory orders and contempt – the “burn it” judgment

I will readily admit that I have not read closely the 278 paragraphs in the judgment of Mr Justice Adam Johnson in Ocado Group Plc & Anor v McKeeve [2022] EWHC 2079 (Ch) (03 August 2022) – the “burn it” contempt case. I do not think that you need to do so either. It is enough to get the overall message that interfering with documents in civil litigation can have consequences that are very personal and not merely corporate, and potentially criminal, not merely civil.

There is a good summary of the facts in the Law Society Gazette of 3 August under the title City lawyer found in contempt over ‘burn it’ instruction. The judgment itself is here. The main action was concluded, and the sole subject was Mr McKeeve’s alleged contempt in the context of those proceedings.

The “burn it” story appears from paragraph 8: Continue reading

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Relativity acquires Heretik for contract review and intelligence

In the before times, I used to travel to events with quantities of video equipment and at least one son to help me, in order to interview people involved in eDiscovery and its related disciplines. It was hard work, but it was worth doing to hear directly from people involved in the industry. Press releases, however good, are constrained by all kinds of factors, and talking to people can uncover more varied ways of describing things.

I did a lot of these interviews at successive Relativity Fests in Chicago. Relativity would give me a list of people to interview and we would bat through them one after the other with a little time for research or preparation, relying on the certainty that Relativity would send us only people with something interesting to say.

One of those I interviewed in 2018 was Charlie Connor, CEO and co-founder of Heretik, a company of which I knew nothing, specialising in an area which was new to me. Heretik had developed a contract review application in Relativity only three years earlier, in 2015, and was keen to talk about it. Continue reading

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Cabo Concepts v MGA – lack of disclosure supervision brings indemnity costs order

What is a sensible approach to commenting on a judgment? You have to read it first, obviously, then try and distil two or three points from it which may have some value for the reader. I like to include a couple of quotations – there’s nothing like primary source material. I look around to see if anyone else has made some commentary which I don’t want to duplicate. I try to draw one or two conclusions of a long-term value. Not least, I often observe that discovery / disclosure is a difficult job and I urge people not to throw stones from the illusory comfort of their own greenhouses.

So, I thought, I’ll have a quick look at Cabo Concepts v MGA and knock out a quick article about it. Here’s the judgment… Crikey!

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Even the first step – just reading the thing – proved quite difficult. This was nothing to do with Mrs Justice Joanna Smith’s prose, which is as lucid as one could hope for, but with the display of judgments on the National Archives site to which they have been moved. Somebody seems to have decided that there is money to be saved by using very small print. I don’t follow the logic of this, but this is the first web page which I have ever had to magnify using my browser’s zoom function.

It was not too difficult to identify the main subject – a trial postponed for two years because of disclosure failures – and the judgment clearly sets out the key topics with a brief procedural history, a summary of the circumstances in which indemnity costs are payable, a series of disclosure failings grouped under five neat headings, a discussion about Unless orders, and the award of 45% of the claimed indemnity costs allegedly thrown away by the very late postponement of the trial. Continue reading

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A glut of disclosure stories just as I turn my back

I have found out how to make things happen in eDiscovery / eDisclosure. You publish an article opening with a sentence like this:

We are a bit short of useful or interesting judgments about disclosure in England and Wales at the moment.

…just before you take a few days off. That brings all the interesting judgments to your yard. Add a touch of post-Covid lassitude (I don’t complain – many have much worse after-effects than perpetual sleepiness, or “brain fog” as my similarly-affected son calls it), and you find a queue of interesting things to read about and, ideally, write about.

The first of those judgments, the phone-in-the-North-Sea one, was published an hour or so after I published my post. Since then, the “Burn it” solicitor has been found guilty of contempt, a leading London city firm has been criticised for major disclosure failures, a council has had its defence struck out for inadequate disclosure and, over in the US, the lawyer for Alex Jones has handed over his client’s cell phone.

Some of these caused a stir in circles wider than those whose job involves disclosure. Coming to them all rather late, I planned at first to do an omnibus article sweeping them all up at once. I am not sure I would ever finish it, and I doubt whether anyone would read something that long, so I will take them one at a time. Everyone seems to be on holiday anyway, so little is lost by some delay, and a subject must have a shelf-life longer than a few weeks to be worth writing about at all.

Vardy v Rooney – the phone in the North Sea and the missing WhatsApp data. Continue reading

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Disclosure duties and audit – not as easy as some may think

We are a bit short of useful or interesting judgments about disclosure in England and Wales at the moment. We have the sound of distant battles (a phone dropped into the sea, a solicitor urging clients to “Burn it” when told of a potentially disclosable source) but, unless I have missed them, we have not had formal reports of outcomes of these cases (the WAGs judgment is due today, I now gather).

The Law Society Gazette brings us an account of an argument about “oversight” and lack of disclosure preparation for a trial which should have started in June. The account is only about the arguments and accusations deployed at a hearing about the allegedly inadequate disclosure, and beyond the fact that the defects do indeed seem to have been responsible for a delayed trial, it is hard to assess the degree of culpability involved. The court was told “..it is apparent that neither Fieldfisher nor MGA properly appreciate what full compliance with their disclosure obligations requires, with MGA’s IT team continuing to make basic errors and Fieldfisher continuing to maintain that the re-harvest process is robust.’

It does not seem to be suggested that the documents not (yet) disclosed are of the kind which will swing the case one way or another, and I doubt that we will hear more of this – there will be some costs consequences, no doubt, as well as the delay itself, but nothing which changes the outcome. Continue reading

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Everlaw Clustering: making eDiscovery enjoyable

Contrary, perhaps, to expectations, I have not devoted much of this blog over the years to actual descriptions of the technology used in eDiscovery. My subject was commentary on rules and practice around the world, and I cheerfully surrendered hours in dark demo rooms in favour of talking to people who were actually doing things. There was more value, I decided, in hearing from lawyers and service providers about the issues raised by eDiscovery, and about the work being done to solve them, than in looking at user interfaces.

There are other reasons for not writing too much about the technology: I am not a user; I have always declined to get involved in system selection; and I have no comparisons to offer from my own recent experience. What has always interested me is persuading lawyers to look at the available solutions, to make themselves aware of what the market offers, and to see if their own businesses might benefit from using one or more of them. That battle largely won now, but it took a while to get there.

__________

I spoke recently to AJ Shankar, CEO of eDiscovery software company Everlaw. His opening shot was that doing what you need to do and enjoying what you do are not incompatible objectives. The expectation from eDiscovery, he said, is one of misery, but it does not have to be like that, and one can get pleasure from using the right software. Continue reading

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In discovery as in life – explosive reactions when social media posts come to light

I have written a fair amount over the years about the use which may be made of one’s social media posts. I am interested partly as a user, but mainly as a commentator on discovery / disclosure. Social media posts put up in a light-hearted moment may prove to be the discovery material of the future. In appropriate cases, lawyers will trawl the social media, of their own clients as well as others, to look for evidence which may confirm or undermine something said by a client, opponent or witness.

I wrote recently (see Reminders from Ukraine about evidence-gathering from electronic devices) about the most extreme example of adverse consequences – posts from Ukraine which might invite a torrent of explosives. It took only a few weeks for that to happen.

The last few days have brought us two examples, one of embarrassment and one of more tangible consequences. Continue reading

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Johnson and Arcuri and the missing documents

The Greater London Authority’s oversight committee is soon due to publish a report into whether Boris Johnson abused his position as London mayor to “benefit and reward” Jennifer Arcuri’s companies, over-ruling official advice in relation both to sponsorship and to her involvement with Johnson on official foreign trade missions. The story is told in a Guardian article of January 2022 here.

The discovery / disclosure point arises because the investigation was reopened when the GLA was given further documents by Arcuri and her company. It is now said in terms that documents were deleted – the Guardian article says that ‘the original IOPC inquiry was hampered by the deletion of key email and phone records at City Hall that prevented the watchdog from “reviewing relevant evidence”’. The deletions came to light because of gaps in the email trail.

When I wrote about this in June 2020, it was not clear how documents came to be missing. I reported that the investigators had said that, “some of the records it had wanted to see ‘either never existed or have been deleted’”. I said:

There is an ambiguity in this which makes my nostrils twitch. When they say that documents ‘either never existed or have been deleted’, are these two categories of documents – the “never existed” ones and the deleted ones – or one category whose absence is unexplained?

The GLA now seems clear that documents have been deleted. Continue reading

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Ethical AI and productivity enhancements announced at Relativity Fest London

I was unfortunately not able to go to Relativity Fest London, which opened on Tuesday. The photographs from the Keynote show a room as packed as it was in 2019 when the last in-person event took place. Relativity has always been good at getting its conference messages to people outside the halls as well as to those attending, and one of the legacies of the last two years of virtual events is that the flow of information to those not present has been both comprehensive and interesting.

That was a great deal of talk about AI, as CEO Mike Gamson made clear in his opening keynote. The press release is packed with announcements on a range of subjects, including the ethical use of AI, the optimisation of workflows, and the enhancement of users’ ability not just to deal with the data, security, and privacy implications which they face today, but to adapt to changes as they take place. Continue reading

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Disclosure fun expected from the Wagatha Christie trial

Unless there is a late outbreak of common sense, the libel action brought by Coleen Rooney against the other one (or is it the other way round?) begins today. If you are interested in the story, the BBC has an article today which, among other things, gives credit to the inventor of the “Wagatha Christie” tag.

It features here because of a couple of disclosure points which are of passing interest (that is, their determination will not change anything, but it is always good to have disclosure issues illuminated for public attention).

Its origin lies in social media data – Instagram posts which, so it is claimed, could only be seen by one person – and one of the recurring points in this blog is that social media creates evidence which may be useful if you know how to get at it (and remember to think of it). Here it is central to the story, not merely a peripheral point. Continue reading

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Reminders from Ukraine about evidence-gathering from electronic devices

The subjects loosely grouped under the heading “eDiscovery” come and go or, rather, they fill the airwaves for a while and then become absorbed into the mainstream to be replaced by the next hot topic.

There was a time when the conference platforms were full of “Big Data”. Big data had a fairly precise definition, but it was also used loosely to refer to the ever-increasing volumes of data of all types and the massive increase in processing and distribution power which accompanied them. Fairly quickly, that became just “data”, and we moved on to talking about the next big topic which, as it happens, was privacy, followed by security. The everyday ubiquity of data, its translation into usable information, its aggregation, and the potential for misuse whether for criminal purposes or political ones, became all-consuming threats for organisations of all sizes, and for individuals. All those little scraps of data which we push out unthinkingly could be captured, aggregated and used for purposes good or bad, often for purposes unthought of by the creator. Photographs and video could be created by anyone, and most of it was geotagged by default. Increasingly sophisticated intelligent software could pull threads together, make matches, and draw conclusions.

The war in Ukraine has accelerated the use of this kind of data, both for combat purposes and for the collection of evidence which will be used in due course for the purposes of war crimes investigations. I am always keen on stories from the news which help illuminate eDiscovery issues. Continue reading

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Spotlight: Asia – virtual event from Relativity on 7 April

On 7 April, Relativity is running a virtual event called Spotlight: Asia which brings together legal and technology experts, and their clients, for a half-day of discussions aimed at the wide and diverse area implied by the event title. The event website is here, and there is a press release about it here.

The major events of the last two years, first plague and now war, have had a major impact on the areas in which Relativity specialises, and Relativity has invested heavily in the Asia market to meet the new challenges. Security concerns are perhaps the main driver for change, but we have also seen heavily-increased activity by regulators, particularly those concerned with financial matters. In addition, today’s current affairs are the source of tomorrow’s litigation, and organisations must be ready for all of it.

The agenda for Spotlight: Asia reflects these concerns. The opening General Session will consider how legal and compliance pressures, and the changes in the volumes, types and sources of data, are applying pressure on organisations and on those responsible for managing the challenges. Although the focus tends to be on defensive activity – protecting the organisation against security attacks and being ready to face regulatory interventions – organisations are also expanding their businesses and looking for more efficient ways to work, particularly between organisations and across borders. Continue reading

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Adverse inferences filling the gaps when the evidence is incomplete

We recently saw a case where a phone bearing WhatsApp messages went yachting and ended up in the North Sea (my article is here). Next up is WeChat messages allegedly deleted by a two-year-old.

I don’t really need to write in any detail about ED & F Man Capital Markets Ltd v Come Harvest Holdings Ltd & Ors [2022] EWHC 229 (Comm), and what it says about adverse inferences, because Gordon Exall has (as so often) already filleted the judgment for the points which matter – see When WeChat messages are lost or destroyed – by a two-year-old: the adverse inferences a court can draw.

For discovery / disclosure purposes, two overlapping points arise:

  • Discussions (in this case on WeChat) in advance of more formal exchanges by email are no less potentially discoverable than the subsequent emails.
  • Adverse inferences may be based on the assessment of witnesses and the evidence, and those adverse inferences may have a very deleterious effect on a party’s position and the outcome.

Continue reading

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Wide-ranging agenda for Relativity at Legalweek 2022

Legalweek 2022 is taking place as I write. I used to go every year, to take part in panels and to do interviews, but mainly to meet up with people. I had hoped to go back this year, with no agenda and no obligations, purely to catch up with people. Instead, I watch from the sidelines (otherwise known as Twitter) feeling, in the over-used cliché, like the stabled war horse with ears pricked at the distant sounds of battle.

Before my time, Legalweek (or LegalTech as I still think of it) was a showcase for general office equipment and services for lawyers. It became almost exclusively an e-Discovery event. Then eDiscovery broadened to take in many related subjects (security, privacy, information governance and so on). Now eDiscovery has broadened its scope in other ways as well, as its clients apply themselves to matters beyond merely getting the work done. Writing recently about the recent general counsel report by Relativity and FTI, I noted that general counsels’ remit now extends to matters of corporate organisation and staff well-being in addition to their primary legal role and the technology to support it. Continue reading

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Relativity brings cloud security to Australian government agencies

Regulators face particular issues in connection with the security of data. They collect vast volumes of it, much of which is by its nature confidential. Their own management of the data, including the legal input and decision-making based on it, must have the highest levels of security. Not least, they must set an example to those whom they regulate – if the regulators’ expectation is that organisations will have adequate systems in place, then they must take a lead in establishing and maintaining their own security.

To deal with this, Australian government agencies have set very high standards for security, requiring suppliers to meet the requirements of the Infosec Registered Assessors Program (IRAP). IRAP sets standards for those who provide security assessment services. Someone who has been through the IRAP assessor training Is effectively certified as qualified to determine whether an organisation or its systems provide an adequate level of security for, for example, the gateways and cloud services which an organisation and its users rely on.

Relativity has just completed the IRAP assessment for its cloud offering, RelativityOne. The press release is here. Continue reading

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Relativity publishes list of AI visionaries

Relativity has published a celebration of people it calls “AI visionaries”, a list of individuals who have contributed to the development of artificial intelligence and its application to every day business processes. Relativity describes these people as “earlier adopters in legal, compliance, and risk who are playing a similar role in advancing the use of AI in the organisations”.

The list itself is here. There is a press release about it here, and a Relativity blog post here  which gives some detail and commentary.

All technological developments go through a period of conflicting views. Enthusiasts, and those with something to sell, often over-hype the alleged benefits. Cynics abound, either because they have seen a demonstration in which the benefits fall short of the hype or because they are resistant to change generally. AI perhaps gets more of this than most things because it is not a single product or product type but a broad set of capabilities which can be applied to almost anything and is correspondingly hard to describe. Continue reading

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Relativity and FTI report – risk, culture and technology challenges for general counsel

I wrote at the end of last year about a report from FTI Consulting and Relativity on the ever-widening role of general counsel. I summarised the theme of that report thus:

You would not [when I qualified] have expected to see a report whose title links general counsel with “risk, culture and technology challenges”, with the implication that corporate lawyers are involved in pretty well every aspect of corporate management.

That report was one of three under the broad heading General Counsel Report 2022. The third one has the title Leading with endurance through risk, culture and technology challenges. Like the others, it is based on interviews by Ari Kaplan of Ari Kaplan Advisors with people directly involved in the changing world described in the report. You can find it here.

The report’s opening proposition is that general counsel have shifted from their core responsibilities to becoming “strategic leaders across health and safety, technology adoption, employee development, diversity and other key initiatives” and that this “served as a crash course in endurance training”. David Horrigan, Discovery Counsel and Legal Education Director at Relativity, says that this is “something [GCs] may not have anticipated while studying torts in law school”. He was speaking specifically of the technology aspect, but it applies to all these subjects. Continue reading

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Various disclosure points arising from the Vardy v Rooney judgment

I wrote last week about the pre-trial hearing in the libel action between Rebecca Vardy and Coleen Rooney. My only source was a news report in the Times, from which the points of passing interest for disclosure enthusiasts concerned a phone dropped into the North Sea and WhatsApp data which had curiously gone missing in transit to lawyers.

The judgment covers more than these things and more than disclosure – Gordon Exall has written, for example, about the delay points which arose. There are a few disclosure elements beyond the lost phone and the WhatsApp data which are worth mentioning.

We learn nothing new about the drowned phone, and it will be for the trial judge to consider this, including the question whether the phone and its contents matter much in the wider scheme of things. Continue reading

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The North Sea ate my evidence – a tale which dogs the WAGs preparing for trial

Even its enthusiasts have to admit that most stories of electronic discovery / disclosure lack popular appeal. Every so often, however, a story comes along which puts eDiscovery into the headlines. We grab them, thankful for something which pushes our professional topic into public consciousness. Most such stories involve data which has gone missing. The latest one from the UK involves footballers’ wives, Instagram and a curious conjunction of circumstances in which the North Sea played a part.

It is important, first, to be clear that a story is not necessarily untrue because it defies belief. One of the recent missing data stories involved Lord Bethell, a minister in Boris Johnson’s Conservative government. Bethell himself is not necessarily corrupt because corruption is fundamental to Boris Johnson’s system of government. He is not necessarily corrupt because his story involves large government contracts given to Tory party donors by means of messages bypassing procurement rules and kept away from civil servants on private phones in breach of the procurement rules. He is not necessarily lying because he told four different stories about the missing WhatsApp data. We must approach these things with an open mind. Continue reading

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A helpful recap of Relativity Fest 2021

The nature of a big event like Relativity Fest is that a mass of interesting views and comments pours out at once. We all report the bits that interest us, but the waters close over it all very quickly as we move on to other things. Inevitably, some useful material disappears from sight, much of which deserves a longer shelf-life.

The website In-House Community has just published its summary of Relativity Fest 2021 with the title Data, e-discovery and Covid-19 key topics at Relativity Fest 2021. It is good to be reminded of some of the salient points. Continue reading

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Craig Ball’s eDiscovery tips for 2022 apply beyond the US

Opening his turn of the year article A dozen nips and tucks for E-Discovery, US eDiscovery expert Craig Ball notes this of the lawyers who attend his presentations:

Ironically, predictably, the more successful the lawyers in attendance, the less moved they are to seek fresh approaches to discovery.

What are “fresh approaches” varies, of course, with your starting point. Craig Ball’s article is not aimed merely at those already expert who might enhance their skills, but at those who really don’t have much of a clue. In a month where England and Wales has seen a defendant’s case struck out for some fairly basic failures (see my recent article Relief from sanctions denied after non-compliance with disclosure unless order) the target audience is wider than those who just need to catch up with new developments.

The US is a foreign country, and they do things differently there. When I began this lark, the differences were very marked, with UK lawyers mocking the US for what seemed an excess of process over proportionality, and US lawyers sneering at the Brits for their apparently lackadaisical and tolerant approach to discovery failures. The gap has narrowed over the years, with the US rules and courts focusing increasingly on proportionality, and the UK rules expecting more from lawyers than hitherto. Suggestions from one jurisdiction have correspondingly more value in the other. Continue reading

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Rediscovering Cornwall after a two-year gap

If it has seemed quiet on here, the long Christmas break was followed immediately by a two-week holiday in Cornwall, resuming a habit broken for two years by the pandemic. To spread some of the pleasure that gave, here are some of my holiday snaps.

We stay at Trebetherick on the north Cornwall coast. This is the River Camel, looking towards Padstow.

Continue reading

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Relief from sanctions denied after non-compliance with disclosure unless order

I am spared having to do a detailed analysis of the judgment in Vitrition UK Ltd v Caine & Ors [2022] EWHC 51 (Comm) (13 January 2022)  because, as so often, Gordon Exall has distilled the main points in a Civil Litigation Brief article called Judge refuses to grant relief from sanctions for defendants who had buried their heads in the sand“.

As Gordon Exall says in opening his article, the judgment has some important observations on the nature, scope and duty of disclosure. I will simply point to the main ones, leaving you to read Gordon Exall’s article. The context, incidentally, is that a 15 day trial had been fixed. There was more at stake than technical rule-breaking and competence.

The starting point is an analysis of the principles in Denton (Denton v T H White [2014])  which require the court to consider whether the breach is serious and/or significant, to look at why it occurred, and to “consider all the circumstances” including the need for litigation to be conducted efficiently and at proportionate cost. As part of the “all the circumstances” limb, the judge referred specifically to the reasons for the default and the fact that full disclosure had apparently not been given even by the time of the hearing. Continue reading

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Report from FTI Consulting and Relativity on the ever-widening role of general counsel

When I qualified, the role of the in-house lawyer was not a particularly significant one. They handled matters of formal corporate compliance and gave preliminary advice on matters with a legal element, but they mainly acted as the interface between a company and its external lawyers.

You would not then have expected to see a report whose title links general counsel with “risk, culture and technology challenges”, with the implication that corporate lawyers are involved in pretty well every aspect of corporate management.

That is what we now have, however, from the technology segment of FTI Consulting and Relativity. The report’s full title is The General Counsel Report 2022: Leading with Endurance Through Risk, Culture and Technology Challenges, and it was compiled on the basis of surveys and interviews conducted by the doyen of legal and technology consulting, Ari Kaplan of Ari Kaplan Advisors. Continue reading

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Chris Dale interviews AJ Shankar, CEO of Everlaw

I recently had the opportunity to interview AJ Shankar, CEO of eDiscovery software company Everlaw. One can read any amount about an industry and its players, but there is no substitute for talking to the people who get the work done, and for hearing in their own words about the challenges and opportunities and what they are doing about them. I am lucky in the people who volunteer for these interviews – the ones I get are always the fluent, eloquent ones with interesting things to say. AJ was no exception.

https://vimeo.com/657372921

One of our themes was that Covid lockdown has not been bad news for everyone. Take-up of some existing technologies – Zoom and many cloud-based applications for example – has been considerably advanced because hitherto reluctant users have suddenly had an extra incentive to adopt them. Some businesses, and Everlaw is one, have been in the right place and at the right time to expand and to reach new markets because their offerings moved overnight from being a choice to being necessary for survival. My ability to set up transatlantic interviews has been positively enhanced by practical restrictions on travel – the pandemic has not only made it respectable to do this remotely but has enhanced the technology which makes it possible.

There is a pleasing conjunction here – of users, the businesses which service them, and the people who report on that, all forced by circumstances to adapt and improve the way they work by making use of solutions which existed anyway. Continue reading

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RelativityOne to support Ireland’s growing disputes and investigations role

Earlier this year, Relativity said that they intended to make RelativityOne available in 14 different geographical areas by the end of 2021. I have not noted all of them as they have been rolled out, in part because the story is much the same everywhere – increasing data volumes, enhanced regulatory requirements, the privacy and data protection implications of the GDPR and other data safeguards, and the need to service staff working from home, have all contributed to a need to locate data where it is secure, where it can be accessed from everywhere and quickly, and where someone else takes responsibility for the backend.

The latest jurisdiction to benefit from the RelativityOne roll-out is Ireland, where there is a new Relativity data centre and a partnership with BSI, whose consulting services team is Relativity’s official launch partner. There is a press release here which tells the story and describes the benefits which Relativity and BSI can now deliver to clients. These include secure access to all Relativity’s functionality, and the release of BSI’s resources for giving attention to clients rather than for maintaining the infrastructure. Continue reading

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Ari Kaplan and Relativity on maximising data collections

You would not think that the apparently routine job of collecting data for discovery could be a career opportunity. It happened to me, some decades ago, when a client pointed to several feet of shelved boxes and suggested that there “might” be some discoverable documents in among the rest. We were already under a 7-day Unless order – unless we served our list of documents in 7 days our claim would be struck out. A glance into randomly-selected boxes suggested that there were quite a lot of potentially discoverable documents in there.

I was then writing software for listing documents (those were the days when every entry had to be typed into a word processor and manually sorted) and I decided that, untested though it was, it gave us our only chance of getting the job done in time. It did, and we beat our time limit. Shortly afterwards, I gave up lawyering and devoted myself to developing discovery software. That collection was, in a curious way, a door to a new career.

I thought of that while speaking to Ari Kaplan of Ari Kaplan Advisors last week. Ari has written a report for Relativity called Maximising Collections in an Evolving eDiscovery Environment. As always with Ari Kaplan’s reports, it is based firmly in material directly taken from those who actually have to do the work, and Ari’s great skill lies in his ability to extract themes from a wide range of views. What did Ari think was the most interesting or important point to come out of his research?

The first thing Ari mentioned was to do with opportunities for individuals in present circumstances. This was partly a Covid lockdown point – that times of urgency and emergency promote those who bring solutions – but partly also the suggestion that the collections problem was so important that there was a greater role for those who could fix it. It was, Ari said, a “dynamic environment” which needed leadership. Continue reading

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Solicitor advises client to delete social media posts. An indemnity costs order seems a light punishment

Disclosure judgments fall into a limited range of categories. Sometimes new-ish rules are not as clear as they might be or are challenged by a set of circumstances not foreseen by the drafters. Sometimes the conduct of one party (occasionally both) falls short of that expected by the court – their demands are disproportionate, or fall the wrong side of the balancing exercise in Denton. Judges are often unimpressed with point-taking, but it can be hard to decide whether duty requires a point to be taken. Sometimes the problem is caused by simple ignorance of the rules or about the mechanics of proper disclosure.

It is rare to find a judgment whose facts show inexcusable conduct by solicitors – not ignorant, not merely sloppy, not sailing close to the wind, but patently giving advice which defies the rules which bind both them and their clients. The report reached me via Gordon Exall (as usual) in a post here which links to an account by Kennedys of a story which defies belief. I don’t say this from some innate belief in the virtue of solicitors (there are 157,000 of them) nor because the Civil Procedure Rules are sacrosanct, nor even because disclosure depends more than anything else on good behaviour. My disbelief stems from the solicitors following a course which was pretty well bound to be discovered. Continue reading

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Hard copy documents destroyed after notification of a claim

Barrister Gordon Exall is once again my source for a judgment about disclosure in the High Court of England and Wales. The case is Ayannuga & Ors v One Shot Products Ltd
and the judgment was delivered on 1 November following an application for orders against the defendants relating to their disclosure. Gordon Exall’s blog post is here.

There is a dry and understated comment near the top of Gordon’s post – “There were some mishaps with the defendant’s disclosure process”. The interest (for us as well as for the court) is that documents were scanned and shredded shortly after the defendants were put on notice of a claim which included death and serious injury. The judgment is concerned partly with directing efforts to find out what happened, and partly to the steps to be taken as a technical and investigative matter to ensure that any surviving relevant documents were secured.

I will not summarise Gordon Exall’s post which, as usual, extracts the bits which matter – matter, that is, to anyone on the receiving end of a potential claim and to those advising them. Continue reading

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The text of the Disclosure Pilot amendments from 1 November

I wrote last week about an ACEDS webinar on 15 November called Navigating the turbulence caused by the Disclosure Pilot.

I can now supplement that with a link to the amendments themselves: the 136th Update – Practice Direction Amendments are on the Justice.Gov site here.

Home

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Navigating the Disclosure Pilot – ACEDS webinar on 15 November

It was always ambitious to try creating a set of civil procedure rules which worked effectively in every court and for every kind of case. I wonder what proportion of the CPR consists of exceptions, derogations and special cases inserted to try and make the requirements fit every circumstance.

Disclosure emphasises the difficulties of rule-making for all. When we were trying to persuade the Rule Committee to adopt the new disclosure practice direction in 2010, most of the compromises (not all of them beneficial to anyone) arose from attempts to accommodate smaller cases in rules whose primary target was the most document-heavy ones. It is right to make those compromises, but it is daft to underestimate the difficulties which result.

The Disclosure Pilot had the advantage that its scope was limited to the Business and Property Courts. Even that selectivity left a wide range of cases to be covered by the pilot. To many, some of the pilot’s provisions are too onerous for any case, despite the need to control the bloat of so many disclosure exercises.

The advantage of a pilot is that one has the chance to tweak it, albeit with the potential for every tweak to upset somebody or, at least, to make confusion worse confounded. What we need is a webinar with authoritative speakers on a mission to explain.

That is just what we have coming up. On 15 November, the ACEDS UK Chapter is producing a webinar called Navigating the Turbulence Experienced by the Disclosure Pilot – A Live Q&A to Discuss Improvements, which will cover how the Disclosure Pilot Scheme has evolved since 2019. Continue reading

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The main points from the International Panel at Relativity Fest

Relativity Fest always generates a mass of material, from company and product announcements to sessions on law and legal practice. I can’t write about it all, and you wouldn’t thank me if I did. If I focus now on the International Panel, that is not just because I moderated it, but because the interaction between the panel members seems worth capturing before the video of the session is taken down on 5 November.

I wrote a bit about the subject in advance in an article called Relativity Fest 2021 – the pervasive effect of privacy and data protection. My theme was (as that word “pervasive” implies) that privacy is no longer a side-issue for narrow specialists but a factor which touches everything we do, from corporate data management to disputes and regulation, to employment law, to personal life. We still need the specialists, of course, and we like to gather some of them on our Relativity Fest panel every year. In introducing the panel, David Horrigan made the point that Relativity itself needs to know what is going on as well as helping to keep its users up to date.

The speakers were Jonathan Armstrong of Cordery in London, Meribeth Banaschik of EY in Germany, Karyn Harty of McCann FitzGerald in Dublin, and Steven Klimt of Clayton Utz in Sydney. We had no preset agenda beyond the broad “International” subject and a session description which emphasised the significance of privacy everywhere. My usual practice is to ask panel members to say what matters to them and then to ask them about it which, among other advantages, gives us a wide range of topics. Continue reading

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Relativity Trace gets new data cleansing capabilities

A false positive is a result which appears to show that a particular condition or attribute is present when it is not. We have just passed the anniversary of what was potentially the worst false positive in history when, on 26 September 1983, the Soviet Union’s nuclear early-warning radar appeared to show five missiles being launched from the US. Stanislav Petrov of the Soviet Air Defence Forces suspected that the alarms were false, and waited for corroboration from other sources. His caution probably averted all-out nuclear war.

Nothing can match that as a warning that one should be cautious about acting on apparently positive results. The downsides to false positives are obvious – the report may be true after all, the opportunity to counter it may be lost, and much time and money is spent ploughing through the false information in order to focus on the things which actually matter.

In the “old” days, the purpose of discovery tools was to find relevant material retrospectively, often years after the event. Even then (and even before technology waded into the fight), there was a serious difficulty with false positives – material which might be relevant but which, on inspection, was found to have no bearing on the issues. That inspection was always time-consuming – necessary in order to show that you had done your job properly, but a waste of resources in retrospect. The implications may not be as serious as those facing Petrov, but they are vital to organisations whose obligations require a focus on what actually matters. Continue reading

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Relativity Fest 2021 – the pervasive effect of privacy and data protection

Relativity Fest 2021 runs from 4-6 October. The decision to make it a virtual event was made many months ago, not just because of the continuing uncertainty about lockdowns and travel restrictions, but because last year’s Relativity Fest was a great success. Yes, it left a hole for those of us who are used to going to Chicago every October, but the virtual attendance was much higher than had been possible before. The virtual on-demand format means that you are also spared having to choose between parallel sessions, with the chance to catch up later with anything you missed.

The agenda is here. I am, as usual, moderating the International Panel. That gives me the opportunity to recall that privacy and data protection are relative newcomers to eDiscovery event agendas. Not long ago, the main themes were rules (in my case comparing developments around the world) and new technology. Each of these subjects had their day in the sun and were then absorbed and taken for granted, to be replaced the following year by news from some other jurisdiction or by a new technology solution.

I started talking about privacy and data protection in about 2009. Outside The Sedona Conference (which was early and authoritative on these subjects) few in the US were much interested in the idea that an individual’s right to privacy might compete with the expectations of courts and opponents that discovery be full and unqualified. We gradually elbowed our way into the agendas with talk of the then-pending EU General Data Protection Regulation, suggesting that anyone involved in international business ought to know about the GDPR. We have at least one significant case (Vesuvius USA Cop. v Phillips, described in this article) in which US discovery demands collide with the GDPR. Continue reading

Posted in Cross-border eDiscovery, Cyber security, Data privacy, Data Protection, Data Security, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Relativity, Relativity Fest | Leave a comment

A discursive look at Prince Andrew and the service of US proceedings

The memories of discovery people have been stirred by mention of the Hague Convention in the context of the purported service of civil proceedings on Prince Andrew. This deliberately non-technical article (as in service is off my usual patch) does at least help you to distinguish between different Hague Conventions and, as an aside, brings in the other Convention and its interplay with the GDPR.

If you ask Google about “Prince Andrew” and “service”, you will be taken to pages about his service as a Royal Navy helicopter pilot in the Falklands War, where one of his roles was missile decoy. More recent pages, however, cover the service of US proceedings brought by Virginia Giuffre, which may prove more career-defining than his role in seeing off Exocets.

I misunderstood two things about this story when it first came up. The first was to assume that these were criminal proceedings; it is in fact a civil claim in which the plaintiff alleges that she was sexually assaulted by the Duke of York (same chap, has various aliases) when she was a teenager. Secondly, I pictured a man in a mac lurking in the bushes outside a Scottish castle before leaping out and thrusting some papers at a guardsman in full scarlet with a bear’s skin on his head. The purported service was more mundane than that, involving the suggestion by the “head of security” that the papers be left at the main gates of the Royal Lodge at Windsor. Continue reading

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Emoji eDiscovery – coming to a case near you shortly

A US case was struck out, and the plaintiff and his lawyers suffered financial sanctions, after clever experts spotted that the emoji on a screenshot of a text was not the one in use on the date of the alleged transmission. Most cases don’t involve the detailed expert appraisal required to spot things like this, but it is prudent to consider the possibility that a document may not be all it seems to be.

__________

In all the talk about new forms of discovery data, it is easy to miss the fact that we have gone in a circle in at least one respect. The ancient Egyptians used hieroglyphics to mean something more usually conveyed in words. Here, for example, is a cat, something Egyptians were fond of:

Ages pass, and we are again reduced to using little pictures to represent things. Here, for example, is the emoji representation of a cat:

Actually it is not “the emoji representation of a cat”. It is one of the many emoji representations of a cat. Every man and his dog has his own cat emoji, it seems, and this is Twitter’s variant. I got it from this page, which shows which tech company uses which emoji cats. It would be easy to be caught out by that, wouldn’t it, if you, say, mocked up a text message and used the wrong emoji? Read on, to see how that matters. Continue reading

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Would you want to go back to the old rules? Further thoughts on the changes to the Disclosure Pilot Scheme

In a recent post, I linked to an update on the Courts and Tribunals Judiciary website about changes to the Disclosure Pilot Scheme.

Now Simmons & Simmons (whose disputes partner Ed Crosse is a member of the disclosure working group) has published a helpful post giving some of the reasons for the changes. Some are obvious. The idea that less complex cases need a less complex process needs no explanation. It perhaps did need emphasising that the Disclosure Review Document may be modified to suit the circumstances, and that it should be used “flexibly”. The distinction between the “list of issues for disclosure” and a “list of every issue in the case” has caused difficulty, and it makes sense to make amendments to reflect judicial commentary on the drafting as it stood.

Does anyone want to go back to Part 31 as it stood before the pilot? The article is surely right to say that the old rules are not fit for purpose. Should we realistically expect that a new process would spring from the working party’s first draft and satisfy everyone? We used not to have pilot schemes – the rules changed and we were stuck with them, for better or (quite often) worse. Continue reading

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Disclosure Pilot update includes simplification and extension to December 2022

The Courts and Tribunals Judiciary website has published an Update on the operation of the Disclosure Pilot Scheme. Proposed changes reflect an “excellent response” to an invitation for comment, and the result is revised versions of Practice Direction PD51U, of the Disclosure Review Document, and of some appendices. The pilot is to be extended until the end of 2022.

The update summarises the main changes. The most interesting is the separate regime for ‘Less Complex Claims’, with a simplified DRD and new guidance notes. Lists of issues for disclosure have caused considerable difficulty (see my article here for an example), and the changes include provision for making it easier to agree the list.

Disclosure Guidance has also caused difficulty, in part because the wording of the Pilot seemed simultaneously to play up the need for a guidance hearing while using language more applicable to a contentious hearing. The ideal is that parties have enough guidance to enable them to sort out most difficulties while having prompt access to the court if they really can’t agree. That, of course, requires more than a revised statement in the rules – access to the court may be harder to get within a tight timetable. Continue reading

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Private emails, private videos and public compliance – Matt Hancock and disclosure

I am sorry, for more than one reason, to have to come back to Her Majesty’s Government as a source of discovery / disclosure stories, but they keep serving up incidents which are relevant to wider corporate disclosure. This time, it is about Matt Hancock, the former Health Secretary, who seems to have used his personal email account to manage correspondence about negotiating PPE contracts, creating the test-and-trace programme and the care homes strategy.

He was also the unwitting star of a video of an intense staff meeting, which raises interesting questions about surveillance and privacy, and is a living illustration of how proper compliance mechanisms ought to prevent wrongdoing.

Some of Matt Hancock’s deals were made with party donors, whose contributions weighed more heavily than their ability to deliver the goods; £39 billion seems to have disappeared largely without trace in the development of a test-and-trace process organised by one of his horse-racing mates;  the care home decision was perhaps the biggest single error in Hancock’s error-strewn handing of the pandemic, when Covid sufferers were despatched into care homes to infect their elderly residents.

Matt Hancock had form, as they say in racing circles. The horse-racing industry has always been generous in its gifts to Hancock’s constituency party, and got their return when he permitted the 2020 Cheltenham event to go ahead. This was the original superspreader occasion, right at the beginning of the pandemic, as Hancock was warned it would be. But he was in racing’s debt, and the event went ahead. Continue reading

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Curtiss v Zurich Insurance – a close focus on Issues for Disclosure

This is an aside from the main point of this article, but disclosure / discovery enthusiasts are not necessarily much interested in the final outcome of the cases which they read about. Their focus is usually on an application decided by reference to the rules of court. Sometimes the point arises at trial, and may affect the final outcome (though the arguments by that stage are more usually about the contents of documents than about compliance with the rules); sometimes the procedural disclosure point, however early or late, brings the case to an end there and then (see e.g. Eaglesham v Ministry of Defence [2016] EWHC 3011 (QB) where the defence was struck out for failure to comply with an “Unless” order, closing off argument about the merits and taking the claim straight to quantum). Sometimes you get a feeling for the likely outcome from the points arising on a disclosure application, and be reasonably certain that settlement discussions will begin at once.

Often, however, the disclosure point is won or lost, we all learn something, and then lose interest in the end result. We might form a view as to the merits (or, at least, as to where our sympathies lie), but do not know all the factors which will drive the final decision or induce a settlement. It is a bit like watching a horse race from a point on the course but not knowing or caring who wins. Continue reading

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Another UK government IT glitch wipes inconvenient Treasury text messages

I wrote recently about an unfortunate “IT glitch” which wiped text messages passing between a senior police officer and the Home Secretary, Priti Patel. It was difficult to cover this story – I did not particularly want to call the officer a liar, and it was easier to assume that he had been let down by his IT department which, I strongly suspect, could have recovered the messages (or hired someone else to do so) if they had wanted to. In the event, the court did not seem too bothered – the facts arising from the alleged offence mattered more than any interference by Patel.

It would be quite wrong to wonder if Priti Patel, the vilest politician of her time, and one impatient with the constraints of mere law when it stands in her way, might have implied that the police officer might consider trading his elevated position in London for traffic control in a rural town. I am sure nothing of the sort was implied, and that an “IT glitch” really is to blame.

Another week, another “IT glitch”. This time it’s the turn of the UK Treasury which has, it seems, wiped data from several government-issued phones. By a singular stroke of misfortune, some of the “lost” messages cover the period when former prime minister David Cameron was sending streams of messages to the Treasury, its civil servants, and its political master Rishi Sunak on behalf of Greensill Capital. We now know that Cameron was being paid £40,000 per day for his strenuous lobbying, and it is very unfortunate that some of the replies are missing. This news arrives just as Michael Gove has barred Sue Gray, the government’s then ethics adviser, from taking questions about Greensill. Between that and “lost” texts, you’d think that the government had something to hide. Well, you may think that; I couldn’t possibly comment. Continue reading

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My eDiscovery interview with Tom O’Connor and Rachi Messing

I was recently interviewed by Tom O’Connor and Rachi Messing, names which will be familiar to most people involved in Discovery, in the US at least. It was fun to do – Tom and Rachi made it feel like a relaxed chat.

I do a fair number of video interviews, but always as interviewer. Those interviews are generally structured to achieve a specific purpose – to give a platform to a person, a company or a product. I try to make it conversational, with spontaneous questions and their answers beyond the agreed agenda. To me, this kind of interview format is more interesting than something which a marketing department has scripted.

My interview with Tom and Rachi was rather different, at least from my seat in the opposite chair to my usual one. Structure and timing were someone else’s problem, and there was no agenda to get through, no list of points which ought to be covered (well there was, but it wasn’t my job to tick them off), and all I had to do was to answer questions to which I knew the answers. Continue reading

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Interview: Lucas Clair of Control Risks in Germany on cloud adoption and RelativityOne

One of the advantages of the pandemic is that the normalisation of remote interviews has broadened the range of people I get the chance to talk to – not just those who happen to be at the events which I attend, but pretty well anyone with something interesting to say.

Control Risks have recently started using RelativityOne through Relativity’s Germany-hosted instance; so far, they’ve transferred about 17TB of data from on-premise to RelativityOne in Germany as cloud appetite grows. I recently spoke to Lucas Clair who is Senior Consultant in EMEA Compliance, Forensics and Intelligence at Control Risks in Germany. As he explained at the start of our interview, he heads Control Risks’ forensics technology practice in German-speaking countries, managing teams, relationships, and projects in the EU and especially in the German-speaking market.

Germany is important for Control Risks as a central hub in Europe and the world. Like many of its clients, Control Risks is integrated globally, working across jurisdictions with other businesses, facing regulatory regimes whose focus stretches around the world, and conducting litigation, arbitrations and investigations which take place in and involve multiple countries. Continue reading

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Eight years of CPR blogging from Gordon Exall and the Civil Litigation Brief

For many years, when people asked my children what their father did for a living, they would say “He’s a blogger”. This was perhaps puzzling, particularly for those who knew that I spent much of my time flying all over the place. What was the link between the stay-at-home nature of blogging and all the travel? In fact the one was intertwined with the other – the invitations to go to events in the US and elsewhere derived from writing the blog, and much of the blog was about things I heard and people I met while at the events

It seems that the word “blog” or weblog was first used in 1997 to refer to an online repository of discrete articles. There was something slightly anarchic about it – there were no rules of content, form or structure, nor was there necessarily anyone mediating between author and reader – no editor or publisher to approve or disapprove, no word-count and no deadlines. One just wrote something – anything – and pressed <Publish>, and the words could be read anywhere in the world. There was then a useful terminological distinction between a blog – the vehicle – and a specific blog post. Now, the word “blog” applies unhelpfully to both.

I wasn’t much interested, to be honest. I wrote occasional articles for legal magazines which they published along with others on paper, and that was enough writing for me. In a non-work setting, I wrote occasional letters to the Oxford Times about the deficiencies of the council or, more rarely, to The Times. It always took me a long time to write any of these things – I lacked the journalist’s ability to write quickly, achieving anything remotely elegant only by much rewriting, a luxury few journalists have. Continue reading

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Senior police officer mislays text messages from the Home Secretary. Were they really lost?

eDiscovery people were lightly amused when a court was told last week that text messages from the Home Secretary to two senior police officers had disappeared when their phones were reset. This article comprises a recital of the reported facts, a bit of political prejudice, and a couple of questions for those who know much more about this subject than I do. It is not a challenge to the officers’ version of events, though it raises questions about the systems and procedures which allowed an alleged “glitch” to erase text messages to and from important law enforcement officers.

The occasion (reported here by the BBC) was the trial of climate change activists accused of “wilfully blocking the highway” at a protest outside a print works owned by Rupert Murdoch. Their defence solicitor said that the defendants “cannot receive a fair trial” as a result of an “IT glitch” which deleted messages from “two phones from two very senior officers in relation to the very issue at the heart of this case”.

There is quite a lot here even before you reach the alleged “glitch” and its effects. Why is the Home Secretary getting involved in police operations anyway? Politicians are concerned with politics and should not be actively involved in operations (yes, I know Churchill turned out in person for the Siege of Sidney Street in 1911, but he was criticised for it and forced to deny that he gave any operational commands). Continue reading

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Relativity Fest panel – legal and technical perspectives on data privacy and data protection

Panel discussions about international discovery, privacy, and data protection serve as a good way of encapsulating the issues of the moment in a short space. Having a range of speakers and a short time-frame forces a focus on those things which matter to those whose work brings them into daily contact with the issues raised by the subjects.

At Relativity Fest London, the panel was called Legal and Technical Perspectives on Data Privacy and Data Protection.  Relativity’s David Horrigan assembled a broadly-based panel comprising Erica Albertson,  Head of eDiscovery Solutions at Simmons & Simmons in London, Karyn Harty, litigation partner at McCann FitzGerald, Andrew Haslam, UK eDisclosure project manager at Squire Patton Boggs in London, and Peggy Anstett, Legal Counsel (NZ Qualified) at Relativity. David Horrigan brought to it his usual calm organisation as moderator.

The event coincided, more or less, with the third anniversary of the GDPR, which encouraged a “Where are we now?” approach. Karyn Harty said that the GDPR had been taken very seriously in Ireland, taking the opportunity as she did so to remind us that there had been similar obligations since long before the GDPR. Small and medium companies had struggled with it, she said, but the level of compliance was very high. Continue reading

Posted in Cross-border eDiscovery, Data Security, Data Subject Access Requests, Discovery, Document Retention, DSARs, eDisclosure, eDiscovery, Electronic disclosure, Relativity, Relativity Fest | Tagged , , | Leave a comment

Relativity’s acquisition of Text IQ brings AI to eDiscovery, compliance and privacy

I recall, years ago, sitting at a hotel bar with Relativity’s founder, Andrew Sieja. It may have been in Dallas, but frankly all those events at similar-looking convention centres blur into one after a decade or so. The conversations similarly merge into an indistinct mass of information and aspiration as eDiscovery company representatives tried to persuade me that their product was different and that it would sweep all before it. For the most part, what they said was interchangeable with what the others had said – the same abstract concepts from whatever was the vogue technology, dressed in the hyperbolic, polysyllabic language devised by the marketing departments.

I can picture everything about this particular conversation though – the bar, the beer, and the immaculate indoor garden under the hotel’s glass roof. In place of the high-flown guff I had come to expect from others, Andrew Sieja had a single and simple assertion: “I want to build the best linear review product in the world”. Continue reading

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The different purposes of Twitter and LinkedIn – a personal view

If you are interested in a specialist subject – eDiscovery / eDisclosure in my case – which social media platform would you spend time on? Ignoring the Facebook empire and its creepy data-vampire, and ignoring those which are effectively closed groups, you are left with LinkedIn and Twitter as places to connect with others with similar interests. I live in Twitter, and use LinkedIn because I feel I ought to. Others think differently. What factors make one more useful than the other for business or specialist discussion? The question came up this week, and set me thinking about it.

LinkedIn is famously dull, full of people announcing things which don’t matter very much to anyone else but them, and of stalkers who invite you to connect with them and then try and flog you their company’s products or services. Like many people, I began by gratefully accepting invitations to connect on LinkedIn, but gradually came to realise that every new connection meant more garbage in my newsfeed, obscuring the relatively few posts about things I do actually need to know.

And there is stuff I need to know – announcements by companies I am connected with in some way, promotions or job moves by people I know, and links to articles which are interesting, important or both. Whenever I do actually scroll down the feed, I find something which is at least worthy, if not necessarily interesting, and I do a spate of Liking and Sharing. I post links to my own articles there, and get enough reactions to suggest that someone is noting their existence. Continue reading

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Relativity highlights EMEA growth and unveils product updates

The usual task when looking at a press release is to disinter the key facts from beneath the marketing gobbledegook and translate them into something comprehensible to the lay user. That doesn’t arise with Relativity’s PRs, which are models of brevity and clarity. I often have to ring someone up to get some flesh to put on the bones. That is how it should be – a press release should leave one wanting more.

A press release headed Relativity Highlights EMEA Growth and Unveils Product Updates
is written with Relativity’s usual clarity, and each subject is covered with the fewest possible words, but it has a very wide range of subjects, reflecting both market activity and product enhancements. I don’t do you much service by simply parroting what it says, but a summary may be helpful to encourage you to read the original.

Most of the news about Relativity in the past year and more has been about the global spread of its cloud platform RelativityOne and its surveillance platform Relativity Trace. Every step has been accompanied by an unspoken “You ain’t seen nothing yet” – the implication that there is more to come. This press release uncovers further expansion of both platforms – a 98% growth in data under management in EMEA, the addition of a RelativityOne team in Germany, and the announcement that both RelativityOne and Trace will be available in Ireland and the UAE in Q3. Continue reading

Posted in AI, Artificial Intelligence, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Relativity, Relativity Trace, RelativityOne, Surveillance | Leave a comment

FTI webinar on 27 May: International Women’s Day 2021 – 3 months on

FTI Consulting is presenting a webinar on 27 May called International Women’s Day 2021 – 3 months on: Keeping the conversation alive with senior leaders in legal technology.

The webinar’s starting point is that technology consulting is still an area largely dominated by men. FTI itself is an exception to this, and proud of the female leadership in its Technology segment, globally and in EMEA. To resolve something you must first recognise it, and this webinar is part of an initiative to promote change beyond FTI itself.

The speakers are Sophie Ross (Global CEO Technology, FTI Consulting), Karen Briggs (EMEA Technology Leader, FTI Consulting), Amali de Alwis MBE (CEO, Founders Forum), and Sue McLean (Partner, Baker McKenzie), and the webinar offers practical suggestions, both about individual careers and about the trend towards greater diversity and equality in legal technology consulting. Continue reading

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Relativity Trace teams up with Proofpoint for seamless archiving and communication surveillance

Relativity Trace is Relativity’s solution for communication surveillance. Its tagline “Detect misconduct before it escalates” is a good summary of its primary function – to identify communications which trigger alerts and concern about one or more individuals.

Proofpoint’s function is archiving, compliance and digital risk, with a cloud-based central repository of a wide range of content types, and a focus on people-centric security and compliance.

A new partnership between Relativity Trace and Proofpoint is designed to help customers manage surveillance data within a “single source of truth”. Relativity Trace will take data directly from the cloud-based Proofpoint Enterprise Archive so that all compliance data is available for analysis and review in one place. The press release is here. Continue reading

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Andrew Haslam’s eDisclosure Systems Buyers Guide 2021

One should, strictly, read a book before reviewing it, but when I sat down to write about Andrew Haslam’s eDisclosure Systems Buyers Guide 2021, I had no aspirations to read it first. It has 496 pages, and is not, in any event, a publication designed for reading from virtual cover to cover. It is, as its title implies, a guide, and the purpose of a guide – to a place, say – is to allow you to find easily the sections which matter to you while perhaps seducing you to parts which were not part of your original plan.

As is turns out, I don’t really need to review it, because that has been comprehensively achieved , first by Rob Robinson of  Complex Discovery (on whose website the Buyers Guide sits) and then by Doug Austin on the IPRO eDiscovery Today site.

Continue reading

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Relativity Fest London – virtual event on 18 and 19 May

The virtual Relativity Fest London takes place on 18 and 19 May. The event is free and virtual, and registration is here.

You can see the Agenda here starting on Tuesday with a Keynote by CEO Mike Gamson and Chief Product Officer Chris Brown.

Also on Tuesday is a session called Driving in-house efficiency. Its premise is the idea that standardisation onto a single platform, used for all eDiscovery / eDisclosure processes, does more than save time and money with each new case, but enables a more efficient set-up-and-go. While others are starting from scratch each time, those who have built RelativityOne into their processes can just get right on with it.

Wednesday brings (among other things) a panel called Legal and technical perspectives on data privacy and data protection moderated by Relativity’s David Horrigan. It will cover, among other things, the extent to which privacy and data protection flows into a very wide range of issues facing legal teams. Continue reading

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“Remember to ask” – my podcast with Taylor Wessing on evidence in the digital age

I recently recorded a podcast with Ed Spencer and Jessie Prynne of Taylor Wessing as part of the firm’s Sidebar series. It was called What does evidence look like in the digital age? and was a short (only 30 minutes) survey of the things which organisations and lawyers need to consider both when giving disclosure and in anticipation of disclosure in future litigation or regulatory investigations.

We crammed a fair amount into a short time. I opened with a summary of the changes since I started in litigation – from a shelf full of files shown to me just before the expiry of a final order, through the death of IT control as computing fled the desktop, via BYOD, and into the multitude of comms apps now available to anyone.

Each stage seemed to raise apparently insuperable disclosure difficulties at the time, but was each tamed just in time for the next development. Jessie took us into the latest development – video calls as substitutes both for meetings and for ordinary old phone calls. These raise some particular issues, some less obvious than others. My own focus is on whether anyone records these calls and, if so, whether the recording can be found (or even remembered as existing) when disclosure obligations arise. Continue reading

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Interview: Relativity’s APAC managing director, Georgia Foster

After writing about two RelativityOne initiatives in Asia, one in Singapore and one in Korea, I thought it would be good to speak to Relativity’s APAC managing director, Georgia Foster, for a more general view of developments in the broader APAC market.

Georgia Foster’s first point, which is worth remembering, is that the Asia Pacific region includes many very distinct countries and regions. There is some commonality between them, and they have all been subject to changes in their economies and in the politics within and between them.

Many developments reflect what has been happening elsewhere – increasing regulatory intervention, growing concern about cyber security, and the consequences of pandemic and lockdown. Each of these has promoted the benefits of moving data to the cloud and working on it there, whether for day-to-day business or for the purposes of litigation discovery and regulatory activity. Continue reading

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RelativityOne Asia expansion continues with South Korea hosting

I wrote recently about the expansion of Relatvity’s SaaS solution, RelativityOne, in Singapore. That news was followed almost immediately by an announcement about RelativityOne expansion into South Korea through an e-discovery service provider called Intellectual Data. The press release is here.

Relativity’s incentive in South Korea is similar to that in Singapore. Many Asian countries are seeing a marked growth in demand for enterprise cloud services, both for the daily management of corporate data, and for discovery for regulatory and litigation purposes. Much of that is international in scope, with South Korean parties being subject to demands for collaborative access to data across borders while respecting the need to keep sensitive data within South Korea’s borders.

Georgia Foster, Managing Director APAC at Relativity, drew attention to the “scalability, extensibility and security” of RelativityOne as users face “a diverse set of e-discovery, regulatory, and compliance challenges”. Continue reading

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Farewell to Robert Childress, the eDiscovery events organiser who knew everybody

I am very sorry to learn of the death of Robert Childress. I knew him as the founder of the Masters Conference, which introduced many people not merely to eDiscovery but to each other. Robert was wonderful at keeping in touch with people and getting them to mingle. In others, you would think that this was just a good way to promote a business. It was good business, but I always felt that Robert did it because he enjoyed it – almost that he set up the Masters Conference to make sure he saw everyone at least once a year.

Others have written about him following his death. Doug Austin’s appreciation of him is hereCat Casey’s post on LinkedIn has attracted many appreciative comments, from people who never met Robert as well as those who knew him.

I did not know him well enough to write a conventional obituary, and can speak only of my interactions with him. I was a beneficiary both of his personal encouragement at a time when I was new to the US, and of his ability to spot coming trends and get them on his agendas. Two of those trends, comparative discovery rules and, later, privacy, required speakers from the UK and EU who were willing to turn up in Washington on request.  Continue reading

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Legal Futures webinar: Dominic Regan on the extension of the Disclosure Pilot Scheme

Legal Futures is giving a webinar called Extension of the Disclosure Pilot Scheme, available from 13 April. The presenter is Professor Dominic Regan, so we know it’s going to be good.

Two things are clear about the Disclosure Pilot. One is that its practical application has caused some dissatisfaction among those required to use it. The other is that we will not be going back. The pilot was expressly launched as a pilot to allow modifications. Some have already been approved and others are under discussion, in addition to some judgments which are worth knowing about.

This webinar will be an excellent way to make sure that you are up to date. Continue reading

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KPMG brings RelativityOne to Singapore

In my recent post about Relativity’s investment from Silver Lake, I mentioned that the investment would support Relativity’s planned expansion into new regions. It was not hard to guess that one of those would be the Asia Pacific region, and that Singapore would be high in the list.

We now have confirmation of that with the announcement that KPMG are bringing RelativityOne to Singapore, the first Big Four firm to do so. The press release is here.

The announcement brings together two things which are more or less obvious – that Singapore is both a major (if not the major) business and technical hub in the region, and that cloud adoption for business data has passed the tipping point. We were getting there anyway, but the disruption of the pandemic has accelerated the trend for everyday data needs as well as for eDiscovery. Continue reading

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Relativity investment to support cloud-based eDiscovery and AI

Relativity has reached an agreement with Silver Lake for an investment to support and accelerate Relativity’s growth in cloud-based eDiscovery, AI, and communication surveillance.

The press release is here. It emphasises Relativity’s dominating position in the market, with 300,000 annual users in 49 countries managing 145 billion files. Recent growth derives from a doubling of RelativityOne users in 12 months, and from the success of Relativity’s communication surveillance platform Relativity Trace. The Silver Lake investment will enhance both, with RelativityOne extending to four additional regions in 2021, and even more resources devoted to the artificial intelligence in Relativity Trace. There will also be investment in expanding Relativity’s offerings to law firms. Continue reading

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Remote hearings – slipping back into the old normal after all that investment and experience

What is the connection between eDiscovery / eDisclosure (the main subject of this blog) and remote hearings? I raise the question as a message from the Lord Chief Justice, Lord Burnett of Maldon, appears to imply that the courts will soon revert to in-person hearings. If that is what he means (and it is not entirely clear what he means) then courts and those who appear in them are about to take a step backwards which wastes a year of hard-won experience, to say nothing of substantial investment in equipment and training. Lockdown may have been the reason why remote attendance became permissible but it was long overdue as a common-sense way of saving the travelling and waiting time of advocates, many of whom are paid from the public purse.

The only real connection with eDisclosure is that the adoption of technology for handling documents in litigation was a long time coming, remedied an obvious waste of time and resources, got its boost from a crisis (in that case the rapid growth of document populations), expected new tricks from lawyers, and required the encouragement of rule-makers and judges who were not necessarily up to speed with modern methods.

If that link seems tenuous, well so what?  I have the luxury of writing about whatever interests me and which may similarly interest a legal (and largely litigation-focussed) audience. Continue reading

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Making the most of it as we go into a second year of virtual events

As we reach the first anniversary of lockdown, event organisers are further forward in some ways than they were a year ago, but no more certain in others. They have been there and done that, but planning for a second lockdown year remains difficult. We are beginning to see decisions being made.

It is no small thing to move from a long-established conventional format of physical attendance to one run wholly virtually. The mixed reactions of delegates perhaps reflects their motives for attending events – if you go mainly for the panels, then you are not much disadvantaged by the shift to online delivery; if you go mainly for the meetings, whether formal or impromptu, then not being there is a serious drawback.

Cost comes into it, of course – for a company selling software or services, it is no small thing to send one person, let alone a team, to a physical event. It also disrupts the day-to-day business of running the business. The fact that everyone is in the same boat is perhaps helpful. Budget once allocated to travel and hospitality, to conference fees and to booth space, can be spent on other, and perhaps more inventive, things. We have all lost the less tangible, but no less important, ability to mix with others, both the hard prospects and the people from whom you expect nothing but the pleasure of their company. Continue reading

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Legal Tech Conference 2021 from Dublin on 25 March

One of the most enjoyable conferences over the years has been the annual La Touche Legal Tech conference in Dublin. Part of the pleasure, of course, has been the opportunity to see something of Ireland while there, and we will be denied that this year as the event is necessarily a virtual one.

The event  web site is here. This year’s topics include Data Privacy implications from Brexit and Schrems 2, the Use of AI in Investigations, Virtual Hearings, the Future of Law, Comms in a Crisis, and tech used to support managing remote teams. Richard Susskind will talk on “The Future of Courts.

I am moderating the privacy panel, with David Cohen of Reed Smith in the US, Meribeth Banaschik of EY in Germany, and Karyn Harty of McCann Fitzgerald in Dublin as the panel members. Continue reading

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More occasional notes on eDiscovery and related subjects – 8 February 2021

As usual, these notes come out when I have collected enough to say rather than to a timetable. I publish today mainly because one subject referred to is an Oxford University  webinar on The Role of AI in Judicial Determination (see below) which takes place tomorrow, 9 March.

Project Counsel Media, Maas Consulting Group and ComplexDiscovery form informational and educational partnership

Behind the corporate names in my heading, are three people I have known for many years. Project Counsel Media was founded by Greg Bufithis, who I first met at a Brussels event in, I think, 2008, and have been in touch with ever since. I have known Jonathan Maas of the Maas Consulting Group for more than three decades, the first person I met who understood the future of the relationship between litigation discovery and technology (and a user of the discovery software I wrote back at the dawn of time). Rob Robinson of ComplexDiscovery was the first and most reliable writer I came across when I began to be interested in US eDiscovery.

They have formed a partnership whose purpose is to expand and enhance their information and education roles. There is a press release here, and Caterina Conti of Project Counsel Media has written a post which explains more about the partnership.

This is a formidable team, and I look forward to seeing their combined output.

Relativity webinar: The e-Discovery Convergency: Your Role in the Combined World of Data Privacy, Data Protection, and Discovery

Relativity has a webinar on Thursday 11 March with the title The e-Discovery Convergency: Your Role in the Combined World of Data Privacy, Data Protection, and Discovery. The target audience is…well, anyone involved in eDiscovery , with a focus on ethical obligations as well as purely legal ones.

The speakers are Honorable Tanya R. Kennedy of the New York Supreme Court, Christa Haskins and Daniel Gold of BDO, and David Horrigan of Relativity. There is more information and a registration form here.

Automatic Justice: The Role of AI in Judicial Determination

The Faculty of Law at the University of Oxford is organising a Zoom talk on 9 March at 1:00pm called Automatic Justice: The Role of AI in Judicial Determination. The speaker is Mark Beer OBE, who I met through a commercial dispute resolution task force of which we are both members.

Mark Beer’s talk will look at the current use cases for AI in support of judicial decision making, and the direction of travel, and and will encourage debate about the possible future role of AI in dispute resolution.

There is more information and a registration form here.

Auto-Delete and Encrypted Messaging Apps: Next in the Regulatory Spotlight?

The subject of ephemeral messages came up in my last post, where its context was the recent Sedona Conference commentary on the subject. It recurred in an article by McCann FitzGerald called Auto-Delete and Encrypted Messaging Apps: Next in the Regulatory Spotlight?

The main theme of the article is the responsibility of organisations for communications which should be retained for regulatory purposes but which are designed to be automatically deleted or encrypted. As the article puts it:

the deletion of communications is always problematic in a regulatory environment and acquiescing in employees’ use of apps that automatically delete content may give rise to inferences which may be difficult to displace.

The article notes that Ireland is not the only jurisdiction trying to manage these issues. The UK’s FCA, for example, has made it clear that it expects such communications to be recorded and auditable.

The article makes some suggestions, with the conclusion that organisations need to understand how employees are communicating, and should develop procedures and training in line with regulators’ expectations.

Guide to eDiscovery in South Africa

LexisNexis South Africa has published the first text on eDicovery in Africa. A guide to eDiscovery in South Africa was written my old friend Terry Harrison and Ismail Hussain SC.

Terry Harrison was formerly one of London’s best-known providers of eDisclosure services and is much missed here. London’s loss is South Africa’s gain, and Terry has been tireless in his efforts to introduce to South Arica both an understanding of the principles and practice of eDiscovery and, by working with rule-makers, of the rules of court by reference to developments in other jurisdictions. The book covers data protection and privacy as they affect discovery, and also cross-border implications

Covid directions in Ireland COVID-19: Commercial Court Directs Fully Remote Witness Hearing Under New Statutory Powers

An article by McCann FitzGerald reports on adjustments made by the Irish Commercial Court for evidence to be given remotely. This was seen to raise constitutional issues as well as practical ones – problems included important requirements such as that justice must be administered in public.

As I understand it, the Commercial Court in England and Wales has successfully adapted to this aspect of lockdown, though an article in the Law Gazette headed Judges weary of Covid-related ‘excuses’ suggests diminishing tolerance of those who are seen as not helping that cause.

Nuix Global Regulator Report

Nuix has commissioned Ari Kaplan to uncover the best practices for financial and competition regulators around the world. The result is contained in the Nuix Global Regulator Report, written jointly by Ari Kaplan and Stuart Clarke of Nuix

The subjects covered in the report include:

  • How do regulators choose which cases to investigate?
  • What kind of warning can companies expect if they’re about to be investigated?
  • What forms of enforcement do regulators use most often?
  • Who makes best use of advanced technologies such as machine learning?

What the Bar can learn from US trial lawyers

There is an interesting article by Edward Henry QC on the Counsel website called
What the Bar can learn from US trial lawyers.

It begins with the author’s discovery, while staying in New York in 1993, that:

Here was something new! Advocacy could be taught. It was a craft. Skills could be imparted and one could practise and improve.

Edward Henry QC suggests that established ways of teaching advocacy are both outdated and unhelpful, that mimicking one’s elders is not necessarily helpful, and that overall case preparation and development of the “narrative” is more important than “force of personality and rhetorical fireworks”. He fears for the dilution and atrophy of our tradition of cross-examination.

Just to add to the sense that this post is really about everyone I knew several decades ago (Bufithis, Maas, Robinson, Harrison), I actually met Edward Henry long before I knew any of the others, before I left practice as a solicitor and before he went to the bar. Keep your friendships warm.

Moving the Civil Procedure Rules

The UK government has been messing around with every government website, moving them all to the GOV.UK site or inflicting other “improvements” designed more for their convenience than for yours or mine.

The usual form is that the job is given to a teenager who bunked off from the web design course at college and quickly landed a job with the government – perhaps daddy was a Facebook friend with Health Minister Matt Hancock, who gives multi-million (or billion) contracts to his mates, or Robert “Nine Bob Note” Jenrick, of whom the less said the better in this context.

I digress. The yoof plays around for a few weeks, then one day transfers the whole site to a new location. It will probably be in colour and in big type. It will almost certainly be useless for the purpose, having had no input from any user.  This happened one morning with the Civil Procedure Rules, whose online version is used constantly by those needing, for example, to check a point urgently or perhaps give a reference to the court. It was a shambles of the kind we have come to expect from the Ministry of Justice.

To his credit, the then Parliamentary Under Secretary of Sate, Lord Wolfson, not only instigated an investigation, but actually tweeted that he had done so. Shortly afterwards, the old site was restored in its former position pending (I hope) a redesign by someone competent, and consultation, however informal, with at least a solicitor, a barrister and a judge.

 

The Snow Moon

The main photographic event since my last post was the appearance of the Snow Moon. There is something special about being able to take such a picture by just stepping outside my front door.

Home

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Relativity turns its AI skills to Pandemic analytics

Relativity has published a film called Pandemic. It subject is the application of analytics and artificial intelligence to the very large volumes of information which exist about the Coronavirus. It is delivered mainly in the words of those involved in a project which brings together skills and knowledge from medicine and from data science to make that data useful. It is interesting both for itself and as an example of eDiscovery skills and tools being used for purposes well beyond their home territory.

The film stands alone as its own story – you will find it here and it is linked to at the bottom of this post. To me, however, it is also part of a continuing story of eDiscovery borrowing tools from other places and, in turn, using them for new purposes.

Once upon a time, as a litigating lawyer, I decided that the dull, repetitive, and time-consuming task of giving discovery could usefully borrow ideas from warehouses and widget factories. They didn’t type up lists of  components and products, but used computers to sort and count things. There then being no software in London which applied computing to discovery, I wrote some.

Time passed, and it became usual to use computers for discovery. Computers and specialist software moved beyond sorting and counting, and into analytics, able to take very large volumes of data and make it useful, finding matches, identifying duplicates, looking for meaning, and determining likely relevance to issues. The aim was not to give discovery – that still needed humans – but to reduce the time taken to find the things which mattered, and to improve the accuracy. Continue reading

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Rather more than a week’s eDiscovery notes

I don’t publish these round-up posts to a particular pattern – they go up when there is enough to say.

The absence of a timetable means that I do not have to apologise if there is a longer-than-usual interval between them. Delays can become circular, however – new subjects come up, I defer publication to include them, and something else gets in the way. They get longer, with more editing and more links to check and suddenly it’s next week.

February has seen:

My interview with John Tinsley of Iconic

A redaction initiative from Relativity

The Phones 4U judgment on documents held by third-party custodians

Two judgments on the destruction of potentially disclosable documents

The announcement of Relativity’s new initiative with X1

Separating these out into distinct articles does at least mean that this article is a little shorter than it might otherwise have been. It is still long enough, and I have held over some content to the next one. Continue reading

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New integration between RelativityOne and X1 accelerates preservation and collection

Relativity and X1 have announced a new integrated solution which combines the strengths of RelativityOne Collect and X1’s Enterprise Platform. The aim is to remove the barriers to seamless preservation and collection of data, both as a technology matter and for training purposes. The press release is here.

I remember years ago hearing of a data collection exercise across multiple locations in a remote part of Canada in winter. The collections expert had to travel between locations through the snow, attach to each local device, download data and head off to the next location. That process was eased, a little, by the development of devices which could be sent by courier and which were pre-loaded with instructions for the users to download their own data. That was a considerable improvement, but it was nevertheless a clunky, time-consuming, and expensive process – and only the start, because the data then had to be sent back to base and uploaded to a server before the onerous task of processing it all could begin.

In those days, data sat in silos, first at the client’s premises and, once collected, on the servers of the litigation support provider or law firm. By the beginning of 2020, that model was changing, with corporations increasingly keeping their data in the cloud, and litigation support providers, particularly those with RelativityOne, doing the same. Continue reading

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Two document destruction judgments in England and Wales

A casual observer of US discovery would conclude that the destruction of documents and data is a national pastime, with immense effort devoted both to deleting documents and to trying to prove that someone else has done so. To an outsider, it seemed almost an obsession in the years after the Zubulake opinions. The stakes were high, and the corresponding investment and effort were enormous.

It has never been quite so significant in England and Wales. One could, perhaps, devote several pages to a discussion about why this is so, but it is perhaps more to do with professional sanctions against lawyers than financial sanctions against their clients. I don’t think we are more inherently virtuous about it. Whatever the reasons, we don’t have the same level of overt concern about document destruction.

That does not mean that it does not happen. One of the cases mentioned below includes some discussion about the body of law which has developed on the subject. What is curious is that we have had two cases in a few days involving the deliberate destruction of documents. Continue reading

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Phones 4U – a proportionate way to deal with documents of third-party custodians

In Phones4U Ltd (In Administration) v EE Ltd and others, the Court of Appeal  had to consider (as Sir Geoffrey Vos MR put it in opening):

questions as to the jurisdiction and the discretion of the court in relation to disclosure provided under CPR Part 31,1 where senior officers, employees and ex-employees of companies have or may have used their personal electronic devices to send and receive work-related messages and emails.

This was an appeal from a judgment of Roth J in the Competition List of the Chancery Division. The Disclosure Pilot does not apply to this list, so Part 31 CPR applied.

Reduced to its essentials, the judge had done his best to find a proportionate approach which recognised that non-party individuals had or may have had documents and data on private devices which perhaps ought to be disclosed, while acknowledging that their employer did not strictly have that material (if it existed) in its control. The judge’s aim was to cut through the expense and complexity of multiple applications in the hope of finding a pragmatic and proportionate course. Continue reading

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Redaction – good news from Relativity but less good for some others

Redaction is one of those functions of which, mercifully, we hear little these days – or so I thought till this week. I wrote about it in 2008 after a calamitous .PDF redaction failure in the US. Redaction was then (and still is for some) largely a manual process involving two stages Mark for Redaction and Apply Redactions, and it was easy to forget the second stage (I know – I had to do it, though only once. I don’t think I missed any, but, in those days, how would you tell?).

if you missed the second stage, the redactions were reversible, and the underlying text could be read and recovered from the OCR text. Spreadsheets raised what were then almost insuperable difficulties.

Since then, the technology has improved, staff have been trained properly, and QA procedures are much better designed to pick up mistakes. The stakes are even higher now than they used to be, as privacy and data protection pushes itself to onto every discovery agenda. This week has brought us some new technology from Relativity to address the problem, and two embarrassing failures from people who ought to know better. Continue reading

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Interview: John Tinsley of Iconic talks about machine translation and eDiscovery

Iconic specialises in enterprise machine translation and eDiscovery translation. I recently interviewed CEO Dr John Tinsley and the result appears in an article by Iconic here. The interview itself is below.

Consumer-level tools for machine translation have improved enormously over the years. I asked John Tinsley what Iconic adds to the task.

John Tinsley said that you need a lot more than the tools which do the translation, both in an enterprise context and for eDiscovery. There are three main things which users expect – the security of data, support, and integration as seamlessly as possible into workflows. He explains in the interview what he means by this and why these elements are important. Continue reading

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A roundup from my desk when we should all be in New York for Legalweek

Every year between 2007 and 2019 I went to Legaltech (later Legalweek) in New York at the end of January. I missed 2020 because I had a hip replacement on 30 January, and consoled myself with the knowledge that I could go in 2021. So much for that.

I ought to say, I suppose, that I miss the glamour of international travel which used to dominate past years. In truth, I have done less of it recently anyway (it makes me tired just looking back through the accounting records from some past years, full of flight, taxi and meal receipts from different cities), and I was content with just the must-attend Legaltech and Relativity Fest. Now even they have gone for now (both will be back, I am sure).

Moderating a Relativity panel at Legalweek in 2018. I remember ties and suits, just

Virtual panels lose the interaction which you only really get from being there with everyone, but I have enjoyed doing them. The interviews which we used to do at events have become virtual ones. I did like the buzz around the live ones – meeting the interviewees, waving to passers-by, rushing off in the gaps between takes to see the rest of the event – but they are easier to set up from my desk and less wearing. Continue reading

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Supreme Court refuses permission to appeal on emailed attachments and privilege

The Law Society Gazette carries a brief report headed Email attachments not covered by legal privilege, court clarifies. The parties were Frasers Group Pls (formerly Sports Direct International plc) v The Financial Reporting Council Ltd, and the court was the UK Supreme Court. Legal Futures writes about it here with the title Email attachments are not privileged just because message is.

The issue, as described by the Gazette was “whether an email with attachments should be treated as a single communication for the purposes of [legal professional privilege], and so if the email was privileged, whether the attachments were also to be treated in the same way”.

The court refused permission to appeal because the application disclosed no arguable point of law. Barrister Tom Bell of Hardwicke was quick to observe on Twitter that “the SC refusing permission to appeal on proposition X doesn’t in any way equate to it “effectively deciding” proposition X”. Continue reading

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Some turn-of-the-year eDiscovery and eDisclosure updates

This is a collection of  some eDiscovery-related things which have come up recently and which deserve to be captured. By chance rather than design, my side of the Atlantic features heavily.

Update your website contact details

Although I have no timetable for publishing these collections, I had intended to put this out this last week. The reason why I did not may have a message for others.

I changed the password for access to WordPress – I had not done so for a long time and an odd picture on my personal blog made me think it prudent to change the password. For whatever reason, Safari failed to record the new password, so I had locked myself out. No problem, you’d think – just apply to change it via the WordPress login. The usual email did not appear with the update link. I worked out eventually that the email address recorded with WordPress no longer existed – its only purpose was fielding these update messages and it seems that Virgin had closed it down because it seemed to be unused.

I then had to prove to WordPress that it was really me who wanted to access the site – it was not difficult (they were helpful) but it did take a while.

Two messages then – change your passwords more frequently than I did, and review your contact information stored on such sites to be sure of receiving the password update messages.

Overhaul of discovery procedures in Ireland Continue reading

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Relativity acquires VerQu to capture communication data

Relativity has acquired VerQu, a company which specialises in the migration and capture of communication data for record retention and compliance purposes. The press release is here.

Relativity itself has been constantly evolving to keep up (and enable its clients to keep up) with the ever-changing nature of communications.  The last time I had the chance to talk face to face with service providers was at Relativity Fest in 2019. My standard closing question when interviewing them is usually “What Relativity developments and pending developments excite you most?”. The ability to capture and manage comms data, particularly short message data, came top of most feature lists.

I spoke this week to Relativity Chief Product Officer, Chris Brown, and asked him what the VerQu products brought to Relativity’s already advanced capture tools. Part of it is a story familiar to any problem-solver – scraping away one layer immediately reveals others. The 2019 developments were a big leap forward for Relativity’s clients, but solving them brought others to the surface, not least the proliferation of collaboration tools and the vastly increased use of them as pandemic imposed a widely distributed user base. The acquisition of VerQu allows Relativity to jump over the next tier of restraints and friction-points encountered by users trying to capture ever more data from an ever-widening range of sources. Continue reading

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Relativity in Australia – investment, new functionality, and support for racial justice

I have the luxury of writing about what interests me and what is important rather than about the things which seem urgent or time-sensitive, and Relativity’s late November news about its Australia expansion seemed worth leaving on one side until I could write about it properly.

There is quite a lot to unpack from a fairly short press release (that’s much better, by the way, than long PRs which use many words to say not very much).

Relativity’s approach to Australia has always seemed well-thought-through – they waited until they were ready, with a product and service package which worked well in the US and Europe, and then stepped into the market properly. The curve has been a steep one with, for example, a 40% increase in Relativity certifications (the best measure of user involvement) over the past year.

Once you have a product which people want, the next key thing is to employ the right people, not just to sell it but to support users. Relativity has recruited Georgia Foster as Managing Director APAC, bringing many years of experience in all the disciplines needed to promote both the uptake of Relativity and its use to its customers’ best advantage. Continue reading

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12 Days of eDiscovery sung in memory of Gayle O’Connor

Some of us involved in eDiscovery were asked to take part in a rendition of The 12 Days of Christmas repurposed as 12 Days of eDiscovery. The production was in memory of Gayle O’Connor who died in October, and was done to benefit Grace House, a New Orleans charity which provides substance-use disorder treatment to women. Gayle was a supporter of Grace House.

The production was organised by Kelly Twigger, CEO of eDiscovery Assistant and Principal at ESI Attorneys, and by Maribel Rivera of Maribel Rivera Marketing & Events, David Horrigan of Relativity, and Nikki McCallum of Lighthouse.

The singing participants were Honorable James Francis, Cat Casey of DISCO, Jared Coseglia of Tru Staffing Partners, Stephanie Clerkin, CEDS, RCA of Korein Tillery, Kenya Dixon of Empire Technologies Risk Management Group, Peg Gianuca of the Walt Disney Company, David Horrigan of Relativity, Ari Kaplan of Ari Kaplan Advisors, Nikki MacCallum of Lighthouse, Dean Monserrat of Maribel Rivera Marketing & Events, Joy Murao of Practice Aligned Resources, Scott Milner of Morgan, Lewis & Bockius LLP, Ryan O’Leary, Esq. of IDC, Debbie Reynolds of Debbie Reynolds Consulting LLC, and me. Continue reading

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An eDiscovery and eDisclosure round-up post with some compliance thoughts on Boris Johnson

It is sometimes helpful to do a round-up post, pulling together a number of different eDiscovery / eDisclosure stories in small nuggets, rather than a big single post on one subject. The week in which my wife has a knee replacement is one such week, as minor household tasks get redistributed (she’s fine, by the way).

The round-up king is Jonathan Maas, whose daily BONG captures everything of interest or importance. You can subscribe for that with an email to  Jonathan@MaasConsultingGroup.com

Here are links to a few articles which have caught my eye recently, ending with a picture of Boris Johnson embarrassing us in foreign affairs (an update for those abroad who may have missed the freak show and the trigger for a compliance point). Continue reading

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More updates on proposed changes to the Disclosure Pilot

It is only a few days since I last wrote about the Disclosure Pilot (see Collecting together some articles on updating the Disclosure Pilot). That article, as its title implies, had the primary aim of pointing to resources written by others, and this one is no different – the proposed revisions are provoking a fair amount of comment from those actually involved in the amendments, and my best service to you is to make sure you see it rather than adding to the pile.

First comes another article from the indefatigable Johnny Shearman at Signature Litigation. Called Disclosure pilot scheme: revision, simplification and extension, it picks out some of the areas under discussion. I will point to three of them without adding much comment of my own:

Disclosure Guidance Hearings have been underused, not least because parties have been unsure when they are appropriate. That word “Hearing” is perhaps not helpful, implying something formal and argumentative where the key word is “Guidance”. There are no plans to change the name, but it should become clearer when and how they are to be used. It is good to see that we are not necessarily stuck with the 30-minute time limit, though that presumably remains the aspiration. Continue reading

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Interview: Wendy King of FTI Consulting on working with teams and clients during the pandemic

I have interviewed Wendy King of FTI Consulting several times. That has always been face to face, usually at conferences, but lockdown brings the need to do the interview remotely. The interview, then, was a model for our subject, which is how FTI Consulting, its clients and its teams, have adapted to 2020’s challenges.

 

We spoke just as FTI Consulting published its Technology segment’s second annual study of corporate legal departments, in partnership with Relativity. The report is called Rising to Today’s Challenges and FTI’s summary of it begins:

Notably, the majority of respondents indicated moderate to significant difficulties in navigating today’s top challenges, including widely dispersed workforces, emerging data types, technology adoption and tackling diversity, equity and inclusion. The report shares the strategies counsel are implementing to overcome these and other issues, establish resiliency for the future and adjust to the changing demands of their role.

In this context, I first asked Wendy King how lockdown has affected how FTI works with its clients and internally. Continue reading

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Relativity adds security recognition with FedRAMP authorisation and Microsoft Intelligent Security Association membership

To most of its users, Relativity is a review tool for use in litigation or regulatory investigations. It is robust, does its job well, is well supported and, with the launch of its new interface, Aero UI, is user-friendly and easy to work with.

There are layers beyond that, however, which most users are not directly concerned with. Relativity Trace, for example, is a compliance and monitoring tool built on Relativity which diverts its functionality to a more proactive role.

Beyond that is a further layer which most users take for granted, but which matters very much to their administrators and clients. That is the implementation of security protection, keeping data safe against threats from outside or within. Relativity has thrown a great deal of resource at security in the last few years, both in terms of development and in the number of people employed with that function.

That has been recognised in two developments in the last few days. One is the attainment of FedRAMP Authorisation for RelativityOne Government, and the other is Relativity’s membership of the Microsoft Intelligent Security Association. Continue reading

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Collecting together some articles on updating the Disclosure Pilot

Ten years ago, I was one of those involved in drafting what became Disclosure Practice Direction 31B. At one level it was quite fun to have the opportunity to improve the practice of managing electronic documents for litigation. At another level it was something of a grind, of long evenings in a boardroom debating the principles and detailed wording, while trying to anticipate objections from practitioners and the Civil Procedure Rule Committee.

The CPRC in those days was a bit like a mixed ability class, with some of the brightest minds in the legal world and, um, some others. High intelligence and a lifetime in practice did not necessarily produce flexibility of thought, as we found when we were allowed to sit in on a CPRC session. I cherish (is that the right word?) the judge who listened to us talking about costs savings and then said “I always think we should be concentrating on the saving of costs”, as if the subject had never come up. The same one heard us going on about the importance of cooperation and court-led focus on what really mattered, and said “I usually send parties away and tell them to sort it out”. Others were right on it, but our impatience perhaps showed, and they left us outside during the next meeting, affecting surprise at finding us in the corridor some hours later.

One MoJ chap was as sharp as a tack; another contributed nothing except to say from time to time that his job was to make sure that no changes would result in any new burden on the Treasury. That was a salary which might have been better applied to the actual administration of justice. Continue reading

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Eddie Sheehy and the disappearing Nuix share options

Here’s a conundrum for someone who writes about eDiscovery, its players, people and market. A company with whom you have had a long relationship falls out with its former CEO who was the original cause of that relationship and with whom you worked happily for years. It is too big a story to ignore. All you can do is report what you see. What I see is appalling.

The company is Nuix, perhaps the leading software company in eDiscovery, investigations, security and compliance. The former CEO is Eddie Sheehy who, with a small and dedicated team, brought Nuix from being a small Australian forensics company to worldwide standing before leaving in early 2017. It was no secret (or, at least, it was easily deduced) that there were differences of opinion between Eddie Sheehy and Nuix’s main shareholder, Macquarie, as to the direction the company should take.

So far, so not uncommon in any industry. Nuix was not the only big player facing choices at a time of considerable change in the worldwide eDiscovery market, and choices bring scope for differing views. Continue reading

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Interview: Craig Carpenter of X1 on social media collection and the integration between X1 and Relativity

Craig Carpenter is CEO of X1, a software company specialising in collecting and searching data from social networks and the internet. I interviewed him recently about X1, about social media and internet discovery, about X1’s work with Relativity, and about the effect of the pandemic on discovery, especially collections.

Craig Carpenter said there was enormous of social media evidence in court anyway even before the pandemic. We all use it, even those of us who are older, and use continues to grow. Continue reading

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Considering the context before commenting on the content

We live in a world where it is necessary to advise people not to drink the hand sanitiser, and where cautious lawyers make you put up notices warning that the water coming from a hot tap may be hot.

In that spirit, I have put a note at the top of my two posts (here and here) about the photographs of President Trump “working” in hospital:

This and its accompanying article are about the probability that the Trump hospital pictures were taken on the date and at the time appearing from the published screenshots of the EXIF viewer. This shouldn’t need saying. but they are not advanced treatises, still less advice, on all the technical and legal issues which can arise when handling electronic data. For that you will want to take specialist advice.

My second post was called Irritating interjections from LinkedIn commentators with nothing worth adding to the subject. The “irritating interjections” were a kind of whataboutery, equivalent to:

Your article about rowing boats on the pond failed to mention the risk of hitting an iceberg at night in mid-Atlantic Continue reading

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Interview: Jordan Domash of Relativity talks about Relativity Trace

Once a year or so, I catch up with Jordan Domash, General Manager for Relativity Trace, Relativity’s communication surveillance solution. This year’s interview was necessarily a virtual one.

Jordan Domash said that Relativity had big ambitions for Relativity Trace – to make a world free of professional misconduct.

There are new customer partnerships, including ones aimed at monitoring communications across multiple channels in multiple languages. Expansion has brought new posts in Europe and in the US, including a compliance subject-matter expert. Continue reading

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Irritating interjections from LinkedIn commentators with nothing worth adding to the subject

This and its accompanying article are about the probability that the Trump hospital pictures were taken on the date and at the time appearing from the published screenshots of the EXIF viewer. This shouldn’t need saying. but they are not advanced treatises, still less advice, on all the technical and legal issues which can arise when handling electronic data. For that you will want to take specialist advice.

The painting “The Irritating Gentleman” by Berthold Woltze is well known now, often used to illustrate mansplaining. It was only when I looked for it as an illustration for this post that I discovered that “Irritating” was Woltze’s label for the man giving his unwanted views to a woman on a train. I had been casting around for a word to describe the people mentioned below, seeking a word slightly softer than the ones I used in the first draft. “Irritating” is perfect for the man (and it’s always a man) who dumps unhelpful comments against a social media post without any positive contribution to the discussion. 

A little man on LinkedIn has challenged the premise of my article about the timing of the Trump hospital photographs. He was rude as well as wrong, but he is not worth powder and shot so I won’t identify him. Another man says that this was “Not the best example of what EXIF can do”. Gosh – how very remiss of me.

It seemed right, however, to double-check the point made by the first observation, and to deal briefly with the second. I do not claim infallibility in this area, but there are two reasons why I felt confident of my ground as to to the dates and times of the photographs. Continue reading

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Looking back at the International Panel at Relativity Fest

It was my pleasure to moderate again the International Panel at Relativity Fest. That usually involves an enjoyable trip to Chicago for most of a week, doing my own panel, attending others, doing several video interviews, and meeting up with people I see only once or twice a year.

This year, Relativity Fest was virtual, a mixture of live and recorded sessions. The International Panel was recorded and so I was able to be on holiday in Scotland (where we went for a week and stayed for two) while the virtual me was leading a discussion on the various subjects which make up the ever-widening ambit of discovery worldwide.

The panel members were chosen to reflect both the range of subjects and the range of people now engaged in them. The speakers were Meribeth Banaschik of EY in Germany, Inés Rubio of BSI in Dublin, Karyn Harty of McCann FitzGerald in Dublin, Jonathan Armstrong of Cordery in London and David Horrigan of Relativity. Continue reading

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Interview – Jamie Berry of Integreon on the enhancements to handling conversations in Relativity

A long time has passed since Relativity Fest 2019 in Chicago, and the big Relativity development news has shifted to its new user interface, Aero.

All the changes are cumulative, however, and the latest developments should not obscure the importance of the previous rounds of improvement.

In this, the third of my interviews with Jamie Berry, Executive Vice President, eDiscovery Services at Integreon, I asked him what were the most exciting Relativity developments down to that date. Continue reading

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Steve Couling of Relativity talks about Relativity’s Aero UI

Relativity’s long-awaited new user interface, Aero UI, has officially launched. The press release is here.

I spoke last week with Steve Couling, Managing Director and Vice President Sales, EMEA at Relativity, about the release and why it is exciting for Relativity and for its users. That interview is here.

Steve Couling said that the aim was to give access to the power of Relativity in a solution which allows any user to get in and start straight away. It is more than just a fresh coat of paint but includes many new features in a modernised architecture. You will find those features summarised in the press release. Continue reading

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Preparing for a virtual panel and recording a remote interview

If this week has been short on visible output, it has been a busy one for the preparation of things to come.

On Tuesday, we had the prep call for the International Panel at Relativity Fest. Relativity Fest is a virtual event this year, running from 21-23 September, with a mixture of live and pre-recorded sessions. The International Panel is to be recorded, and I am the moderator. The speakers are Meribeth Banaschik of EY in Germany, Inés Rubio of BSI in Dublin, Karyn Harty of McCann FitzGerald in Dublin, Jonathan Armstrong of Cordery in London and David Horrigan of Relativity.

Much of our time, inevitably, will be spent on privacy matters, with Privacy Shield, Schrems II/III and CCPA to talk about. We will also cover Data Subject Access Requests and other things from the place where privacy or data protection meet discovery.

We also hope to talk about subjects made topical by cases or by current events, such as self-collection of data and the collection and review of video meetings data.

__________

In addition, I recorded an interview in anticipation of Relativity Fest. The style is the same as the ones I have done for many years, with my sons as technical support, in which I interview someone about some aspect of eDiscovery or its related subjects. Continue reading

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Looking at the lies of the land: Fake Law, political lying and activist lawyers

The Secret Barrister’s second book Fake Law has as its subtitle “The Truth About Justice in an Age of Lies“. Publication was held over from the spring, and the book arrives at a time of public dishonesty such as we have never seen before. There is a tenuous connection with eDiscovery (the primary subject of this blog) in that the tricks and tools of public dishonesty include those which are familiar (or should be) to anyone engaged in civil or criminal discovery.

This is not a review of the book because I must wait like everyone else for publication on 3 September when it will be available from e.g. Daunt Books for £20 or for slightly less from Amazon. I depend to some extent on the Secret Barrister’s article in The Guardian last week called Against the law: why judges are under attack, but my point is not so much to preview the book as to talk slightly discursively about the age of lies.

Along the way, we might ask why people lie, cheat and deceive. Motive and opportunity are factors to be considered when looking at criminal behaviour and in anticipating security risks, as well as in public dishonesty. For Boris Johnson, lying seems to be a personal characteristic almost divorced from anything he might achieve by it. Smaller fish like Health Minister Matt Hancock tell lies partly to alter the record in anticipation of the inevitable public inquiry into the handling of the pandemic, but also because lying seems to be a qualification for serving in Boris Johnson’s government. Wearing my eDiscovery hat, I am looking forward to that inquiry.

But why do they keep going? Johnson has an 80 seat majority and has got the Brexit he lied so assiduously to get. Adding to the lie pile now just emphasises the fact that he only reached his position by dishonest means, and reinforces the perception that everything he says is untrue. Continue reading

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ILTA>ON – a virtual event for the global digital technology community 24-28 August

For many years, ILTA’s big annual event took me to one of those vast resorts in the US, often in Las Vegas. I participated in and attended sessions, did interviews, and took the opportunity to set up formal meetings. Mainly, though, I had impromptu conversations with people, many of whom I saw only once or twice a year. An extremely efficient organising team somehow created a relaxed atmosphere in those unpromising surroundings, in parallel with the production of a very businesslike agenda.

I have missed the last couple of years for different reasons but would have been there this year. Big physically-attended events are not happening, however, and we are all focussed on replacing – and even improving on – the experience to which we had become accustomed.

ILTA has risen to the challenge of lockdown by rebranding itself as ILTA>ON and offering a full week’s program of sessions which preserve the formal side of the event while delivering it to a potentially much wider audience – not everyone could get to Las Vegas in August but a virtual event is open to all. Continue reading

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