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

Posted on March 8, 2021 by Chris Dale

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

Posted on March 3, 2021 by Chris Dale

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

Posted on February 23, 2021 by Chris Dale

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

Posted on February 17, 2021 by Chris Dale

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

Posted on February 16, 2021 by Chris Dale

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

Posted on February 15, 2021 by Chris Dale

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

Posted on February 5, 2021 by Chris Dale

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

Posted on February 1, 2021 by Chris Dale

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

Posted on January 29, 2021 by Chris Dale

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

Posted on January 22, 2021 by Chris Dale

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

Posted on January 11, 2021 by Chris Dale

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

Posted on January 6, 2021 by Chris Dale

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

Posted on December 23, 2020 by Chris Dale

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

Posted on December 22, 2020 by Chris Dale

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

Posted on December 14, 2020 by Chris Dale

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

Posted on December 2, 2020 by Chris Dale

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

Posted on November 30, 2020 by Chris Dale

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

Posted on November 17, 2020 by Chris Dale

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

Posted on November 13, 2020 by Chris Dale

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

Posted on November 9, 2020 by Chris Dale

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

Posted on October 28, 2020 by Chris Dale

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

Posted on October 19, 2020 by Chris Dale

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

Posted on October 12, 2020 by Chris Dale

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 →

Posted in Digital investigations, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Relativity | Tagged , | Leave a comment

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

Posted on October 9, 2020 by Chris Dale

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

Posted on October 7, 2020 by Chris Dale

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 →

Posted in Compliance, Discovery, DSARs, eDisclosure, eDisclosure Conferences, eDiscovery, Electronic disclosure, Relativity, Relativity Fest | Tagged , , , , | Leave a comment

If you want to tell a story in pictures, make sure the EXIF data supports it

Posted on October 5, 2020 by Chris Dale

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.

Years ago, just before I gave my first ever talk to judges about electronic Discovery, someone said “For God’s sake, don’t tell them about metadata”. He was probably right at that time, but we have moved on, and no one seriously involved in electronic Discovery will dispute the value of metadata as a means of identifying and validating electronic communications.

I refer quite often to the metadata (strictly EXIF – Exchangeable Image File Format data) which lurks behind most electronic photographs. It has proved crucial in uncovering the truth in many cases, both by directly contradicting what appears from the photograph itself, and by undermining the credibility of parties and witnesses who produce it.

President Trump or his social media advisers have inadvertently given us an example. Photographs appeared at the weekend of Mr Trump allegedly working while in hospital. He wore a jacket in one picture and not in the other, and was seen in different rooms. The obvious aim behind this variety was to show that Trump was hard at work on different occasions.

Rather incautiously as seen in retrospect, Trump’s advisers chose to publish the EXIF data behind each picture. That showed that only ten minutes separated the two pictures. If the aim was to show that the president was hard at work, it has backfired. What we see instead is a deliberate falsification of circumstances designed to allay public concern about the President’s health. We instead conclude exactly the opposite. Continue reading →

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

Posted on September 30, 2020 by Chris Dale

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

Posted on September 14, 2020 by Chris Dale

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

Posted on September 4, 2020 by Chris Dale

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 →

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, GDPR, Relativity, Relativity Fest | Leave a comment

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

Posted on August 29, 2020 by Chris Dale

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

Posted on August 20, 2020 by Chris Dale

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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ACEDS webinar on 9 September – arbitrations and UK eDiscovery

Posted on August 19, 2020 by Chris Dale

The ACEDS UK Chapter has a record of producing interesting and timely webinars. I moderated one for them earlier this year and we got a good audience for a discussion about the implications of Covid for the future of eDiscovery.

The next ACEDS UK webinar is on 9th September, and is called Arbitrations are on the rise: what does this mean for e-discovery in the UK? The subjects to be discussed include:

  • Why are we seeing a growing rise in international arbitrations?
  • Should arbitration be used instead of litigation?
  • How does the London market stand to capture the increasing volume of international arbitrations?
  • How does the management of discovery differ for arbitrations?
  • What are the challenges?
  • How can these be overcome?
  • How might Data Analytics be used to mitigate a lot of the data management & production issues?
  • What does the future hold?

Continue reading →

Posted in ACEDS, Consilio, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Everlaw | Leave a comment

Self-collection of discovery / disclosure documents on both sides of the Atlantic

Posted on August 14, 2020 by Chris Dale

My headline illustrates one of the difficulties of writing about the same subject as it relates to both the Civil Procedure Rules of England and Wales and the Federal Rules of Civil Procedure. Thanks to a pointless rule change in 1999, we can’t even use the same terminology as the rest of the world to refer to what is essentially the same function, and I have to keep writing “discovery / disclosure”.

To that is added the gritted teeth through which I refer to the “UK rules” because I really can’t be taking up half a blog post explaining not only that we use different terminology but that “England and Wales” is a single and discrete jurisdiction, that there are no “UK” or “British” rules, and that Scotland is a separate jurisdiction and Ireland a different country.

There we are – 138 words so far and I haven’t even started on my actual topic.

There are as many differences as similarities between the US and E&W rules. Occasionally, the same subject surfaces at the same time and it is one of those – self-collection of documents – which is my topic for today. “Self-collection”, in this context, means that a litigant, whether an individual or an organisation, gathers discovery documents themselves, with the usual implication that they set the criteria for collection. After all, so the argument runs, they know their own data. Continue reading →

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Recording and reviewing online meetings – a webinar by Panoram, Nuix and Integreon

Posted on August 12, 2020 by Chris Dale

I wrote recently about something easily overlooked in the rush to hold meetings by Zoom or its rival video platforms – how do you decide what to capture for posterity? “Posterity” in this case means either that the recording has a value for an organisation’s business purposes (by, for example, recording a discussion about a pending contract), or for HR purposes (e.g. a recruitment or disciplinary interview), or for some compliance purpose (e.g. because a regulator requires it). “Posterity” may also, of course, involve a possible future discovery / disclosure obligation, including the need to comply with a Data Subject Access Request (DSAR).

My article, called Zooming from video meetings to discovery requests about video meetings, was based on an article by Martin Bonney of Panoram and Vince Neicho of Integreon, which explored many of the implications, some obvious and some less so, of the fast-growing use of video for discussions, both formal and informal. Martin Bonney and Vince Neicho are teaming up again, along with Neil Thomas of Nuix, to produce a webinar on 18 August called Recording and Reviewing Online Meetings for eDiscovery Professionals. Continue reading →

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NightOwl Global merger with HaystackID

Posted on August 10, 2020 by Chris Dale

My summer staycation involved dismantling my office for decoration, so I have not got much work done in the last few days.

The main eDiscovery event during my absence was the merger between HaystackID and NightOwl Global to produce what they not unreasonably describe as “a comprehensive and complete set of data and legal discovery services for legal departments and law firms across the globe”. Continue reading →

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, HaystackID, Litigation Support, NightOwl Global | Leave a comment

Staycation – decluttering, destruction and decoration

Posted on August 3, 2020 by Chris Dale

The word “staycation” is much abused. It is a portmanteau word invented by travel journalists which has no real place in English (we have holidays, not vacations, so the apparent premise that you are stay[ing at home for your va]cation sounds unattractive anyway). Since we are stuck with the word, let’s use it properly. It is not a holiday within your own national borders (that’s just a holiday) but a period in which you stay at home and do things other than work, which may include day trips elsewhere.

Many, it seems, are so desperate to go abroad that they will risk anything – the indifferent contempt of airports and airlines, the selfish refusal of others to wear masks or observe distancing rules, the vague incompetence of government – to get to a beach in some foreign country. Others fight for beds in UK resorts despite the hostility of the natives, despite the eye-watering prices being charged by hotels and landlords understandably desperate to recoup some of their lockdown losses, and despite the possibility that Prime Minister Bungling Boris Johnson and Health Secretary Maundering Mutt Halfcock will suddenly impose some new internal travel restriction.

I love August in a typical year. There is little point in writing anything when there are so few around to read it. We stay at home while everyone else goes away. The streets fall quiet. It’s all a bit like lockdown with better weather. This August, however, things are different. Continue reading →

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Interview: Jamie Berry of Integreon on encouraging lawyers to use technology

Posted on July 21, 2020 by Chris Dale

This is the second of my interviews with Jamie Berry, Executive Vice President, Litigation Services at Integreon, which we recorded at Relativity Fest 2019 in Chicago. The first one is here.

The theme of this interview is the question how you encourage lawyers to use technology in their practices. As I say in opening, lawyers are not thought of as being particularly receptive to new ideas. I asked Jamie Berry how you encourage them to use software tools like Relativity. Continue reading →

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All change as Relativity Fest 2020 goes virtual and as video becomes the norm

Posted on July 16, 2020 by Chris Dale

Relativity’s big annual event usually takes place in Chicago in the autumn. Thousands of people with shared interests gather for a few days of talks and panel sessions, training and certification, meetings with developers and customers, parties and drinks. It is useful and it is fun.

This year, Relativity Fest will be a virtual event, online from 21 to 23 September 2020. Its purpose will be the same as always – it is “designed to educate and connect the e-discovery community. It’s the place for legal and tech professionals to talk shop, connect with your peers, and learn from each other.”. There will be break-out sessions, panel discussions, hands-on exercises and more. Knowing Relativity, I expect it all to work as a technical matter, and to inform and entertain as aways. It also has the potential to reach literally thousands of people who have never been able to travel to Chicago for the physical event.

The events will be transmitted by two things, one of which we don’t notice any more – the internet – and one of which is about to achieve the same status – video and video conferencing. These two things make up the themes of this article. Continue reading →

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Zooming from video meetings to discovery requests about video meetings

Posted on July 14, 2020 by Chris Dale

An article by Vince Neicho of Integreon and Martin Bonney of Panoram draws attention to the sudden potential demand for retrieval and review of video data, not least the business, legal, regulatory, and privacy implications of video meetings.

In retrospect, the transition from paper discovery to email discovery was relatively painless, though it did not seem so at the time. It was not just that the medium changed; communication by email became both easy and immediate and, in the marketing jargon of the time, volumes were said to have “skyrocketed”. The focus was on ease of creation, as Microsoft and others gave us simple ways of generating and exchanging more documents. Tools appeared for archiving, collecting, and searching all this stuff, and they improved at a great rate. The existence of these tools meant that the standards expected of discovery lawyers rose with them, each advance quickly becoming the norm, at least for those with the wit to see it.

New and yet faster tools arose for creating and exchanging written information. Email seemed informal until texts came along. Almost without noticing it, we moved to near-instant means of communication, increasingly on platforms belonging to other people. If the transition seemed quick at the time, it was perhaps because we were not concentrating. Continue reading →

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Interview: Jamie Berry of Integreon on how Relativity supports large document reviews

Posted on July 9, 2020 by Chris Dale

At Relativity Fest 2019 in Chicago, I interviewed Jamie Berry, Executive Vice President, Litigation Services at Integreon. Jamie Berry has been in eDiscovery for a long time, and had so much to say that was interesting that I have split the interview into three parts. This is the first.

I asked Jamie Berry how Relativity supports its users. He worked at DLA Piper when it became a very early adopter of Relativity and, he said, DLA Piper was able to influence earlier versions of Relativity right from the beginning, getting many of the features it wanted thanks to Relativity’s willingness to listen to its users.

That continues, Jamie Berry said. Relativity uses shows like Relativity Fest for several purposes, and one of them is to get user feedback. Continue reading →

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Disclosure obligations and self-selection of disclosure documents – the Square Global case

Posted on July 8, 2020 by Chris Dale

An article called A timely reminder for clients not to “self-select” disclosable documents by Rhys Novak of Charles Russell Speechlys draws attention to the judgment in Square Global Ltd v Leonard [2020] EWHC 1008 (QB) (28 April 2020). It is an employment case, about alleged constructive dismissal, but what is said about disclosure applies to any civil case. The relevant part is in a Postscript beginning at Paragraph 195.

The point at issue was whether Mr Leonard had been “remiss in complying diligently with his disclosure duties”. The arguments (on which the parties submitted brief written submissions) involved a conflict between the idea that a party is best-placed to know what documents exist, and the duty of solicitors to control what is selected. Square Global “were not suggesting that there was a breach of any professional obligation by Mr Leonard’s solicitors, as opposed to underscoring what they submitted was evidence of lack of candour on the part of Mr. Leonard himself.”

Leonard similarly complained about Square’s disclosure. Continue reading →

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Interview: Gráinne Bryan of FTI Consulting on the use of technology in Irish dispute resolution and compliance monitoring

Posted on July 6, 2020 by Chris Dale

I recently interviewed Gráinne Bryan of FTI Consulting in Ireland about FTI’s technology role in helping law firms, financial institutions and other businesses with anything to do with the use of data in business.

In the second part of our discussion, we talked about the growing acceptance in Ireland that technology must be used to manage data in dispute resolution and compliance monitoring. Ireland has a strict discovery regime, and until the 2016 discovery judgment in IBRC v Quinn, it had not been considered appropriate to use technology to identify discoverable documents. The Quinn judgment changed that and, Gráinne Bryan said, the use of tools like technology-assisted review is now general. Continue reading →

Posted in Compliance, Compliance monitoring, Discovery, eDisclosure, eDiscovery, Electronic disclosure, FTI Consulting, FTI Technology | Tagged | Leave a comment

Depp gets through to the last reel with relief from sanctions over disclosure failures

Posted on July 3, 2020 by Chris Dale

Johnny Depp’s most famous character, Captain Jack Sparrow, is used to situations where all seems lost but something happens in the nick of time to effect a rescue. We left Depp’s latest storyline with our hero struck out for alleged failure to comply with an ‘unless’ order for disclosure.

On the defendant’s case, Depp’s case was struck out automatically on his failure to comply with Mr Justice Nicol’s order of 10 March. The hearing reported in my most recent article ended with a cliff-hanger – the judge declined to make an order for strike-out on the basis that Depp’s lawyers made a very prompt application for relief from sanctions.

That has now happened, and Depp lives to fight another day. The judgment is here (my thanks to Gordon Exall and his Civil Litigation Brief, as so often, for prompt access to things like this and for his usual brisk summary of the key points of the judgment). Continue reading →

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Recorded ACEDS webinar: a better way of doing webinars about better ways of doing discovery

Posted on July 2, 2020 by Chris Dale

At the beginning of May, I moderated a webinar for the ACEDS UK Chapter called Will the COVID Crisis Cure Outdated Approaches to eDiscovery? Although it was UK-based, the ground we covered is relevant everywhere where discovery is required. We got a good turnout for it, and pleasing comments afterwards, and I thought it might be helpful to publish the recording for those who missed it. It is at the end of this post.

It was the first one I have done using video rather than merely audio. Would we have thought to ask for a video production before COVID? I don’t think we would have considered it, and I mean that literally – it would not have crossed our minds. Right at the beginning of the crisis, I took part in a conventional webinar with EDRM about working from home. At that stage, relatively few people had spent much time working from home, and we covered some of the basic points. By the beginning of May, everyone was their own expert in WFH, and Zoom had become a natural way to communicate – not always a welcome way for everyone, but better than nothing. It was time to move on from day-to-day things and to start looking ahead to a post-COVID eDiscovery world.

I was determined that we should be both positive and optimistic about it. We chose speakers who, whatever their prior experience at remote working, had had to throw themselves and their teams at just getting the job done. The result seemed to be a leap forward – the crisis had helped to encourage a new way of thinking and a new balance between the elements of a job. Continue reading →

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The whitey stuff meets the White Book – Depp struck out for non-compliance with a disclosure order

Posted on June 30, 2020 by Chris Dale

In Depp v News Group Newspapers Ltd & Anor [2020] EWHC 1689 (QB) (29 June 2020) the defendants’ counsel submitted that Johnny Depp’s mentions in texts to “whitey stuff” were references to cocaine. The Civil Procedure Rules of England and Wales are set out in The White Book. The White Book’s rules and the ‘whitey stuff’ texts collided in a hearing before Mr Justice Nicol last week. The White Book won, and Depp’s case was struck out, subject to an application for relief from sanctions which, the judge said, must be made PDQ because the trial was listed for 7 July.

The main point at issue was whether, on the face of the pleaded cases, the apparent drug use brought certain texts within Rule 31.6. It mattered also that the disclosure was proportionate.

__________

Johnny Depp last appeared in this blog in February, when I commented (cautiously) on a report in the Guardian that his “previous legal team accidentally shared an archive of 70,000 messages with the Sun’s lawyers.” He turns up now because his libel action against his former wife, Amber Heard, fell to be struck out for failure to comply with an order for disclosure made in March. If there is no successful application for relief from sanctions, the striking out will presumably take effect from the expiry of the order referred to below. Continue reading →

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Taking care about time and place data in eDiscovery – things may not be as simple as they seem

Posted on June 25, 2020 by Chris Dale

Electronic communication makes discovery all so easy, doesn’t it? After all, no less a person than Neil Gorsuch, a justice of the US Supreme Court, was recently mentioned in a Legaltech News article here in these terms:

“And it can’t be burdensome,” Gorsuch said, according to the Supreme Court’s transcript. “I heard [burden], was your third, but in an age where everything’s online and can be handed over on a disk or a thumb drive, that—that—that much pretty much disappears too.”

This is why one UK judge, himself familiar with both the rules and the technology, said at a conference last year that we must keep disclosure disputes away from the Court of Appeal. That absolute certainty which comes of rising to the top of the legal tree might lead one of our senior judges to say something equally daft, burdening the rest of us with the consequences forever.

Time and place are two key components for establishing the truth about a document. It is helpful to understand, if you understand nothing else, that neither is as easy as may appear, at least when something vital turns on getting it right. I recall a story from the very early days of computer forensics where law enforcement kicked down the door of some East Coast premises, confident that the timestamps on a document had taken them to the right door. In fact the server had been bought second-hand from a West Coast company and no-one had changed the clock to reflect the new time zone. Continue reading →

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A new website and a different way of working – new opportunities for us and our clients

Posted on June 22, 2020 by Chris Dale

The eDisclosure Information Project has a new website. It introduces a new way of offering our video and other services to a wider range of clients in a way which makes opportunities, for them and for us, out of the apparent gloom of a locked-down world.

One change was always due to happen anyway, and that is the ending of the sponsorship relationships which have served me well since 2007. Long before the coronavirus hit, I gave notice that sponsorships would end by 31 March 2020 and that I would spend April developing a new model. There were several reasons for this. It limited the range of potential clients in a consolidating market which was in the hands of ever fewer players. Sponsorship became a hard concept to sell – the idea that sponsors could have whatever they wanted for their annual fee seems harder to fit into budgets than a defined set of tasks for a fixed fee, even though the sponsorship fee represented very good value for those who took full advantage of it. It came to give poor value to me, not least because adding videos to the existing offerings meant I had to do much more for the same money, and pay the fees and travel expenses of my techie sons who did the videos.

All these factors – the problem of marketing an undefined deliverable to a smaller class of potential clients while earning a diminishing return for more work – could be met by ending the sponsorships and moving to a model under which I offer a service for a fee, do the work and send in a bill.

The website sets out what those services are – video interviews, webinars, podcasts, panel moderation and writing. They are offered to all comers, not just those who sign up for a year’s sponsorship, and while eDiscovery / eDisclosure remains the main focus, the skills and tools can be turned to any subject. Continue reading →

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Boris Johnson and his friends remind us of the link between political dishonesty and eDiscovery

Posted on June 15, 2020 by Chris Dale

When an investigation was announced into the grant made to Boris Johnson’s friend Jennifer Arcuri, I rather assumed that we would shortly hear of missing documents. And so we did. As everyone mocked the elaborate stories told by Boris Johnson’s consigliere Dominic Cummings about his drive to Durham, I recalled another story involving the tracking of a Land Rover Discovery. That journey involved one person being killed with a crossbow; we will never find out how many people the virus-infected Cummings killed with his trip. In both cases, politics and discovery overlapped.

We are short of amusement in these difficult times, but we got some light relief recently when a story resurfaced from last year. Prime Minister Boris Johnson asserted in November 2019 that he had never told a lie in his political career. His life, political and otherwise, has in fact been defined by dishonest assertions, from his days as a journalist in Brussels (when he invented so many of the EU stories which led the less thoughtful of the Telegraph readers to vote Leave), via the Vote Leave campaign itself, on through the lockdown press conferences, and right through to Prime Minister’s Questions last week.

Discovery comes into it, or will do so, in both specific cases and generally. In the wider field, there will in due course be public inquiries into (among other things) the Garden Bridge, the whole conduct of Vote Leave (and specifically into the report on Russian influence in the referendum), the Jennifer Arcuri affair, and the conduct of the Covid-19 reaction. All it needs is for Johnson’s party to turn on him – this will be about a week after the coronavirus dies down so that they can blame him for it without having to handle the problem themselves. The inquiries will flush out some interesting documents which will be used to test Johnson’s assertions, both those made contemporaneously with the events in question and those made in the inquiries. I may book front row seats Continue reading →

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Interview: Gráinne Bryan on FTI Consulting’s technology role in Ireland

Posted on June 2, 2020 by Chris Dale

Gráinne Bryan has recently been appointed as Managing Director, Technology, at FTI Consulting in Ireland. I know her from her previous role as CEO, Legal Technology Solutions at leading law firm McCann FitzGerald, where she promoted the use of technology across a range of disciplines, not least data investigations. I asked her about her new role at FTI.

In this interview, we first discuss FTI Consulting’s role in Dublin and the addition of FTI’s technology segment to FTI’s growing Irish establishment. This, as Gráinne Bryan observes, is part of a wider organisation which brings together technology skills in Madrid, France, Germany and South Africa. Continue reading →

Posted in Digital investigations, Discovery, eDisclosure, eDiscovery, Electronic disclosure, FTI Consulting, FTI Technology, Relativity | Tagged | Leave a comment

Relativity Fest London – eDisclosure and global eDiscovery panel today

Posted on May 14, 2020 by Chris Dale

 Relativity Fest London reaches its third and final day today. The usual one-day event has been spread across three part-days, a format which allows people from different time zones to join in.

At 13:00 BST today, David Horrigan of Relativity will moderate a panel whose title is Judicial & Practitioner Perspectives: e-Disclosure, the Pilot Scheme, & Global e-Discovery. The speakers are Master McCloud, Erica Albertson, Head of eDiscovery Solutions at Simmons & Simmons, Ed Crosse, Partner at Simmons & Simmons, and Kushal Gandhi, Partner at CMS.

David Horrigan talked about this panel in my interview with him which I wrote about here. Continue reading →

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Vince Neicho of Integreon: managing the cyclical nature of litigation

Posted on May 13, 2020 by Chris Dale

Vince Neicho is Vice President, Legal Services at Integreon. Before that he was for many years responsible for litigation support and eDisclosure at Allen & Overy. He has written a timely article on the Integreon blog called Law firms and the cyclical nature of litigation, investigations, and dispute resolution.

His opening proposition is that the economic aftermath of major events like COVID-19 brings work for disputes lawyers just as their law firms are forced to make cuts. Litigation and renewed regulatory intervention creates opportunities at a time when budgets and staff are being cut across the firm. How can firms be ready to profit from this work when their resources are being reduced?

His answer, which seems obvious once expressed, is that law firms can outsource those parts of the work which cannot be performed efficiently and economically within the firm. The most extreme example of work which is simultaneously important and resource-intensive is document review, and the engagement of an alternative legal service provider (like Integreon) allows firms to manage the peaks and troughs, profiting from the wave of new work without challenging the firm’s restricted budgets. Continue reading →

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Interview: David Horrigan of Relativity on the virtual Relativity Fest London 2020

Posted on May 11, 2020 by Chris Dale

This year’s Relativity Fest London runs from 12-14 May. Inevitably, it is a virtual event, but that does at least enable many more people to attend. The Agenda and other details can be found here.

My interviews have also gone virtual as you can see from this discussion with Relativity’s David Horrigan in which he briefly describes some of the events, including one dedicated to disclosure and related topics in England and Wales.

Continue reading →

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Moderating an ACEDS UK webinar on 7 May: Will the COVID Crisis Cure Outdated Approaches to eDiscovery?

Posted on May 5, 2020 by Chris Dale

I am the moderator of a webinar to be run by the ACEDS UK Chapter on 7 May at 12:00 BST. Its title is Will the COVID Crisis Cure Outdated Approaches to eDiscovery?

When the lockdown was new, webinars (including one I did with EDRM) and articles concentrated on the practicalities of working from home. The working world adapted pretty quickly to the new normal, and people were soon able to pick up more or less where they left off when they tumbled out of their offices for the last time. Many found it harder, either because their work really did require physical attendance or because their domestic arrangements simply did not accommodate working from home for reasons ranging from lack to space to unreliable broadband. There was little time to plan or to devise systems which suited the employer, the staff member and, where relevant, the end client.

Time has gone by. The big debate at a political level involves a trade between reviving the economy and keeping people alive. At a business level, companies have had to consider first how to keep servicing the clients safely. It is time to look beyond getting through the crisis and on to its medium and long-term effects on the business.

In the ediscovery market, there are challenges at three levels – the technical and security points which arise when the workforce is distributed away from the centre, the wishes of the clients, and the relationship with the people who actually do the work. Continue reading →

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Behrens v Arconic: US proceedings, the Grenfell fire and the Hague Convention on the Taking of Evidence Abroad

Posted on May 4, 2020 by Chris Dale

There is a short version and a longer story to be told about the Grenfell Tower litigation in the US District Court for the Eastern District of Pennsylvania in a case called Behrens v Arconic.

The short version is that Judge Baylson, a judge who knows his stuff when it comes to discovery across jurisdictional borders, has ordered that “Plaintiffs must first utilize the Hague Convention processes to obtain the …. documents they seek”. The Order itself
puts it like this:

it is hereby ORDERED that the Recommendation of the Expert and Master is approved and Plaintiffs shall utilize the procedures of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters to obtain the documents that Arconic asserts are protected by the French Blocking Statute.

That’s it, really. All you need to do is remember where to find it when some US lawyer starts arguing that the Federal Rules of Civil Procedure are the sole source of authority on US discovery matters, that some kind of US discovery exceptionalism entitles US parties and courts to ignore the laws of other countries, and that the Hague Convention machinery is too slow for the purpose of getting discovery. Judge Baylson sets out with comprehensive care the factors which must be considered and which, in this case, supported the use of the Hague Convention.

To understand the significance of this, we need to go back a bit. Perhaps we no longer have to fight old battles but, having seen this aspect at least of US discovery exceptionalism laid in its coffin, I would like to go round with a hammer and some nails and make sure it stays there. Continue reading →

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

Interview: Siobhan Reilly of FRONTEO on AI in eDiscovery and message review in RelativityOne

Posted on April 6, 2020 by Chris Dale

FRONTEO is an AI tech company with software and service offerings for law for lawyers. At Relativity Fest in Chicago, I interviewed Siobhan Reilly of FRONTEO about FRONTEO’s legal software and specifically about its use of RelativityOne.

The main legal function of FRONTEO’s technology is to bring its analytics into review – it was an analytics company first and turned to the legal market which offered good use cases for FRONTEO’s technology. Continue reading →

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Interview: Jordan Domash of Relativity on developments in Relativity Trace

Posted on April 1, 2020 by Chris Dale

At Relativity Fest 2018, I interviewed Relativity’s Jordan Domash about the then-nascent product Relativity Trace. Twelve months later, I interviewed him again at Relativity Fest 2019, asking him what had changed since we last met.

Jordan Domash said that much had happened in three areas: one was about customers; another was about the progress on the product; the third was to do with the team responsible for Relativity Trace. Continue reading →

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, FTI Consulting, FTI Technology, Relativity | Tagged | Leave a comment

Interview: Megan Rowland of Legility on the attributes of project managers, clients and eDiscovery industry recruits

Posted on March 30, 2020 by Chris Dale

At Relativity Fest in Chicago, I interviewed Megan Rowland of Inventus. Since the interview, Legility and Inventus have come together under the name Legility. Megan Rowland is Team Lead, Project Management at Legility.

I asked her what makes a good project manager. You take it for granted that they are knowledgeable, but they must also have good communication skills, be flexible, approachable and personable. It seemed worth asking the reciprocal question – what makes a good client? Continue reading →

Posted in Discovery, eDiscovery, Electronic disclosure, Inventus, Legility, Litigation Support, Relativity, Relativity Fest, Technology Assisted Review | Tagged | Leave a comment

EDRM webinar on 18 March: G2K Remote working hacks from the pros

Posted on March 12, 2020 by Chris Dale

Since it was taken over by Mary Mack and Kaylee Walstad last year, EDRM has become a really useful source of information and guidance on a range of subjects.

Most of those are necessarily about the subject implied by EDRM’s name – the Electronic Discovery Reference Model. One coming up next week, however, is about a yet more topical subject – remote working. Suddenly, everyone is being told to work from home, raising issues for some which extend well beyond the mechanics of getting the actual work done.

I am one of the speakers, presumably because I have been working from home since the days of faxes and ISDN (that dates me, and perhaps dates you if you don’t know what ‘ISDN’ was). The other speakers are Eric P. Mandel of Driven, Inc., Debbie Reynolds of DR Consulting, Jonathan Hiroshi Rossi of The CJK Group, Saya University, together with Mary Mack and Kaylee Walstad of EDRM.

My tips will include conventional ones like being at your desk for much the same hours as you would in the office, and involving those you live with instead of shouting at them to be quiet, as well as others with a technology implication. Continue reading →

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Nuix articles on the use of photographs as evidence

Posted on March 11, 2020 by Chris Dale

I write and speak quite often about photographs as evidence. This is perhaps partly because I take a lot of pictures and use their EXIF data (Exchangeable Image File Format – a specific type of extended metadata) to find and categorise them. It is partly because pictures are inherently more interesting than Word files or spreadsheets, so that their hidden data makes for better stories. It is partly, perhaps mainly, because very many people take a lot of photographs every day, unconsciously pinning their devices (and therefore generally themselves) to identifiable places.

They also pin themselves to other people, that is, can inadvertently show that two or more people were in the same place at the same time if the EXIF data from two cameras are matched thanks to pictures taken at the time. The individuals don’t need pictures of each other if they both took pictures of the same view at the same moment, and an investigator who has both pictures, and perhaps the devices which were used to take them, might get a starting-point in showing a conspiracy or some kind of joint endeavour. Continue reading →

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Bringing technology to communication in a narrowing world – finding positives in a pandemic

Posted on March 6, 2020 by Chris Dale

It is 27 years since I started working from home. It is hard now to remember how isolating that felt before advances in technology like email and broadband brought the world to my desk. It has become respectable since then, and coronavirus is making it almost obligatory. Do I still have reasons to go out? What about the video interviews which form so much of my output?

Although much of my output is written, here on this blog, the highest-value and most interesting parts (to me, anyway) are those which are delivered in person or by video. For many years, I have happily travelled to anywhere in the world with an audience, to moderate or participate in panels and to interview people involved in eDiscovery. For the interviews, I have taken one or two of my sons, Will and Charlie, together with a pile of cameras, lights, tripods and audio equipment.

The aim was to maintain the output quality wherever we went, buying and carrying ever better (and usually heavier) equipment. It has been harder in the last couple of years thanks to my failing hip joint, which made travel tiresome, but that is now fixed and will be as good as new in a month or so.

Other things, however, have developed which prompt a fresh look at how we do these videos, with their current premise that I travel to distant lands with equipment and technicians. The most recent is the coronavirus, which is emptying planes and prompting interesting (and sometimes positive) discussions about ways of working which don’t involve everyone converging on the same place. Continue reading →

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Video | Leave a comment

Interview: Stephanie Clerkin of Korein Tillery on winning the Stellar Women in eDiscovery Award at Relativity Fest

Posted on March 2, 2020 by Chris Dale

At Relativity Fest in Chicago, I interviewed Stephanie Clerkin of Korein Tillery who had just won the Stellar Women in eDiscovery award. Stephanie Clerkin was particularly pleased that the award was based on the votes of the eDiscovery community and not just a committee.

I asked Stephanie Clerkin how she had become involved in eDiscovery. She said that she had worked in finance accounting consulting. There was a logic, she said, in moving from the expert side into legal. Continue reading →

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Depp court text disclosure said to be “accidental”. Let’s wait and see before rushing to criticise

Posted on February 28, 2020 by Chris Dale

It’s been a good week for those of us who like to see discovery / disclosure stories in the mainstream media. Less so, perhaps, for the chap convicted of murder thanks to technology (my article is here) and for Johnny Depp’s former lawyers in his libel case against the Sun.

I have only a Guardian story to go on. Behind the headline ‘Let’s burn Amber’: texts allegedly sent by Johnny Depp about ex read in court is this:

Depp’s previous legal team accidentally shared an archive of 70,000 messages with the Sun’s lawyers.

I don’t know who the lawyers were, and I don’t know what lies behind the journalist’s choice of the word “accidentally”. Depp’s text messages must have been thought to have some bearing on the issues to have been collected at all. The story now said to be libellous is about an alleged assault by Depp on his former wife, so their content as reported (“Let’s drown her before we burn her!!!”) is not wholly irrelevant to the allegation. It is hard to see what privilege would attach to them if they were otherwise disclosable. I have no idea whether they should have been disclosed or not (and you can’t overdo the words “alleged” and “allegation” in stories like this). Continue reading →

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A crossbow murder and car insurance fraud – technology is quietly filing the evidence. What about your next case?

Posted on February 26, 2020 by Chris Dale

A decent bloke with no known enemies dies after being shot with a crossbow. How did technology lead to the killer? And what else might that technology be used for?

I wrote last year about a motor insurance case called Wise v Hegarty & Alpha Insurance under the headline When the car sneaks on you and your social media betrays you.

It was about an alleged motor accident which had caused insurers to investigate the telematics data in one of the cars. Telematics embraces vehicle movements and telecommunications and it lies behind the “black box” devices which insurers use primarily to evaluate the driving skills of insured drivers. It can do much more than that, however, including keeping records of the times of engines starting and stopping, the opening and closing of doors, and the history of speeds and locations. It doesn’t just record these things, but transmits them for immediate analysis. In the car accident case, the telematics data showed no relevant activity of time, place and movement. Once the court accepted that the equipment was capable of making such records and had done so, that sufficed to damn both the vehicle owners.

Similar equipment and deductions have now helped convict a man for shooting another man with a crossbow. When I say “helped” I mean that without it, the police would have had a problem converting their initial lead into hard evidence.

I think that few of my readers are likely to come across car insurance fraud or crossbow murders. My purpose in pointing you to the stories is the increasing prevalence of electronic data quietly reporting on your every move. And by “your”, I mean every move made by clients, their opponents, the witnesses, and every other participant in a crime or civil dispute. Continue reading →

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

Nuix on cybersecurity breaches – the fines are just the beginning of the costs consequences

Posted on February 25, 2020 by Chris Dale

It is worth mentioning, again, that fines from regulators are not the only cost consequence of a cybersecurity breach.

The point is well made in an article on the Nuix blog called Insider threat: not just a cybersecurity issue. Its unspoken context is the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). It barely mentions fines, focussing instead on the many other expenses which may follow from a cybersecurity breach, especially if the breach goes unnoticed for weeks or months.

Although both the incidence and level of fines seems to be increasing, the knock-on consequences can cost more. The Nuix article concentrates largely on the time and expense of enabling recovery and moving on to the steps needed to prevent a recurrence. The most benevolent regulator is unlikely to forgive a second incident which might have been prevented by remedying the causes of a first breach. Continue reading →

Posted in Cyber security, Data Security, Discovery, eDiscovery, Nuix | Leave a comment

Interview: Tony Chan of iCourts on winning Best Innovation Provider Award at Relativity Fest

Posted on February 24, 2020 by Chris Dale

At Relativity Fest every year, I get the opportunity to interview the winners of the Relativity Innovation Awards, whose purpose is to “recognize organizations and individuals who build innovative solutions, break down barriers for technology in the practice of law, move e-discovery forward, and take Relativity to the next level.”

Among the 2019 Innovation Award winners was Tony Chan, Director, Development Solutions at iCourts in Sydney. His role at iCourts involves talking to clients to identify their pain points and develop solutions to fix them. I asked him about the award – what it was for and what it meant to him and to iCourts.

Continue reading →

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Relativity, Relativity Fest | Tagged | Leave a comment

NightOwl Global and the business value of being likeable

Posted on February 20, 2020 by Chris Dale

As a customer or client, does it matter if you like the companies you work with? If they get the job done and the price is right, do you care very much if you like the people? Looked at from the point of view of that company, do you care if your customers like your business and its people as long as they send the work along and pay the bills? It is not much of a spoiler to say that I think it does matter.

The subject comes up because of a profile in Modern Counsel about NightOwl Global and its CEO Andrea Wallack. Called NightOwl Global Is Dedicated to Discovery, it describes NightOwl’s business and the principles which drive its approach to getting the work done for clients.

Much of that is common to any successful provider of eDiscovery services – skills in industry-leading platforms, the ability to develop proprietary software to improve workflows, a clear business offering which solves real problems, and a global presence, are all required components for success as an eDiscovery provider. You need more than that, however, in an industry where clients are particularly demanding (a GC facing a powerful regulator, for example, is always a demanding client), and where consolidation has lined up some very big players as competitors. You have to be more than just good at the job to be thriving after 30 years in discovery. Continue reading →

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Interview: Andrew Szwez of FTI Consulting on the value of using RelativityOne

Posted on February 19, 2020 by Chris Dale

I recall being invited to a meeting at a US conference, I suppose about three years ago. In the room were senior marketing people from Relativity and FTI Consulting. As always on these occasions, I tried to guess what announcement might be coming. I didn’t anticipate a partnership between FTI and Relativity.

Three years on, it seems obvious that FTI and Relativity would make a successful partnership around the use of RelativityOne. One reason why this seemed less obvious then was that no-one then anticipated the success of RelativityOne and the opportunities it would open up for consulting businesses like FTI.

At Relativity Fest in Chicago, I interviewed Andrew Szwez, Senior Managing Director at FTI Consulting about FTI’s use of RelativityOne over the time since that announcement.

Continue reading →

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, FTI Consulting, FTI Technology, Relativity | Tagged | Leave a comment

The Disclosure Pilot: narrow focus of disclosure issues and not using the disclosure pilot as an offensive weapon

Posted on February 18, 2020 by Chris Dale

I recently saw a police tweet which expressed almost admiration for the speed with which some car thieves had stripped down a couple of cars, neatly packaging the components for re-use elsewhere.

Gordon Exall, author of the Civil Litigation Brief, does much the same with judgments. Have a judgment delivered on, say, 14 February, and Gordon will have stripped it down to its essentials by 16 February, ready for re-use in your pleadings, submissions or (in my case) articles, by 17 February.

That’s what he has done with the judgment of Sir Geoffrey Vos in McParland & Partners Ltd & Anor v Whitehead [2020] EWHC 298 (Ch) (14 February 2020) in a blog post called The Disclosure Pilot: guidance given as to how it should work: not a stick with which to beat your opponent. The post also covers another judgment, on second applications for disclosure, but I am going to leave that on one side for the moment.

Neither the McParland judgment nor Gordon’s summary of it is very long. My purpose is to pick out a couple of points, provide links to their source in the Practice Direction, and hammer them, leaving you to read more if you want to. Continue reading →

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Interview: Marc Zamsky of Compliance on the benefits of RelativityOne

Posted on February 17, 2020 by Chris Dale

At RelativityFest in Chicago, I interviewed Marc Zamsky of Compliance Discovery Solutions. I asked him why Compliance had moved to RelativityOne and about the benefits which RelativityOne brings to Compliance and its clients.

Marc Zamsky said that Relativity’s future lay with RelativityOne and that the future of eDiscovery lay in the cloud. The ability to run multiple processes at the click of a button was important on its own, even before looking at the processes themselves. It altered the whole approach to discovery, moving it towards the point where one can get quickly to looking at data and drawing conclusions from it.

For the clients, the main attraction was the security given by Azure in the cloud. It also helps them to build truly end-to-end processes, particularly with the arrival of Relativity Collect. Continue reading →

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Story Development for legal teams from FTI Technology

Posted on February 12, 2020 by Chris Dale

The assembly of detail needed for a complex film scene is similar to that required for running litigation. FTI Technology has Story Development services to help get all the elements into place.

I recently watched the film 1917, notable for the fact that it was shot in as few takes as possible. Characters moved from point to point, followed, preceded or accompanied by one or more cameras which were passed from hand to truck to wire and back to hand to match what the actors were doing or seeing. Technology undoubtedly played a big part in the success of this approach – high-quality cameras are light and portable for one thing – but technology alone is no substitute for the success of the continuous narrative which unfolds.

Think how much scripting, planning and rehearsal went into those continuous shots, with no chance to stop or to consider a different angle, and with the normal infrastructure of filming – lighting, sound, people – out of sight from every usable angle. Thousands of elements, animate and inanimate, seen and unseen, all come together to create a credible narrative.

Managing litigation has similar components. People, facts, words, and pictures all contribute to the story which must impress an opponent and the court. Some matter more than others. Some may have significance greater than first appears. Some, whether supportive or unhelpful, may slip by unnoticed until too late. A competent assembly of the story in advance is a prerequisite for delivering the case, in the same way that pre-assembly of a complex film scene is essential to its smooth delivery when the director shouts “Action”. Continue reading →

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, FTI Consulting, FTI Technology, Litigation | Leave a comment

What does it cost and what does it look like? Relativity improves its UI and pricing

Posted on February 11, 2020 by Chris Dale

Many factors influence software buying decisions. You hear of organisations buying a particular product for the sake of one feature which it considers important. People buy software after long and detailed comparison or on the strength of what someone said in the pub. They buy because everyone else is, or because they want to be different. They buy because they like the person doing the selling, or because they didn’t take to the rival demonstrator. They buy because they understand the technology or because they don’t want to have to understand it.

Two factors are always relevant to a software purchasing decision. What does it look like? And what does it cost? These factors may influence different constituencies – the person who sits looking at the interface all day may have a different view from the one who signs the purchase order, but the one doing the authorisation will be influenced if the user interface will increase productivity and reduce errors.

Relativity has addressed both these things recently, with the launch of a new pricing model on top of its recent publicity for its new Aero UI. Both are covered in this article by Relativity’s chief product officer, Chris Brown. The context is both what Chris Brown calls “empowerment” (a theme at last year’s Relativity Fest), and the more mundane-sounding (but important) ambition to “make it easier for everyone to use” RelativityOne. Continue reading →

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Interview: Craig Carpenter of X1 on the X1 partnership with Relativity

Posted on February 10, 2020 by Chris Dale

I have known Craig Carpenter, CEO of data collection company X1, for almost as long as I have been in eDiscovery. At Relativity Fest in Chicago, I at last had the opportunity to interview him. The context was a newly-announced partnership between X1 and Relativity. Why, I asked, should users be excited about this?

Craig Carpenter said that the most obvious benefit lies in the ease with which users can now get data into RelativityOne. The workflow is now seamless. RelativityOne already collects data from e.g. OneDrive and O365, making use of its cloud presence to make these collections from anywhere. X1 adds the ability to collect from sources which RelativityOne does not handle natively, including social media and the ever-widening range of tools by which users communicate with each other. Continue reading →

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Discovering the value of rest

Posted on February 6, 2020 by Chris Dale

In which I belatedly (after 42 years of work) consider the value of just switching off occasionally and, as a side-note, observe that while you won’t necessarily get opportunities by being there, you certainly won’t get them if you are not. These two things may conflict with each other.

I have always rather under-estimated the value of rest. It is not the same as relaxation. A hearty walk, or mountaineering, or digging the garden, may be relaxing, depending on your personal taste, in that they take your mind and body away from the business of working, but they are not restful.

I realise, a few decades late, that I have conflated the two things. I have also seen rest as an army commander might see it on a route march – just enough to get soldiers back on their feet for the next stage (or, in my case, enough to keep my eyes open while I write the next article).

The subject comes up because I am (as most of you know by now) stuck at home with a new hip when I should be at Legalweek in New York. I am not sure I would have been up to the rigours of Legalweek this year on the old hip, but the prospect of an imminent operation date was enough on its own to keep me at home. I was offered a date last week on three days notice, and I am glad I stayed at home for it. Continue reading →

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EDRM webinar on 29 January: What to do at Legalweek

Posted on January 28, 2020 by Chris Dale

EDRM is hosting a webinar tomorrow, 29 January, at 12:00pm CT / 6:00pm GMT called What to do at Legalweek. The speakers are Mary Mack and Kaylee Walstad of EDRM, Ian Campbell of iCONECT and me.

Although I will not be there this year, I have been going to Legaltech since 2007. Ian Campbell has been going for 25 years. The webinar’s advertised subjects are “What to do, what to see, what’s hot and what’s not”.

That “hot and what’s not” expression is meant to refer to the topics of the moment, but it also literally identifies one very practical point – the streets are very cold, the Hilton is very hot, and the coat-check queues are often long. If you are not staying at the Hilton, you have to decide whether to freeze without a coat on the way there, boil in your coat while you are there, or join the queue. One year, crampons and waders would have been helpful, as piles of snow alternated with deep pools of murky water in the gutters. Continue reading →

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Sunday Brunch at Legalweek with Consilio, Nuix and APT Search

Posted on January 27, 2020 by Chris Dale

As you may have seen in my recent article, I am not going to Legalweek in New York this year, missing it for the first time since 2007.

One of the many things I will most regret is the brunch jointly organised by Consilio, Nuix and APT Search, taking place on Sunday at the Tavern on the Green in Central Park between 11:00am and 1:00pm.

The brunch was founded by the late Nigel Murray. The photograph below, taken at the 2008 Brunch, shows a fairly small gathering. Nigel Murray is in the red pullover. My son Will, attending his first Legalweek, is in the dark top at front right. Continue reading →

Posted in APT Search, Consilio, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Nuix | Leave a comment

Interview: Antonia Karlan of Control Risks on the benefits of using RelativityOne

Posted on January 21, 2020 by Chris Dale

At Relativity Fest, I interviewed Antonia Karlan, Head of Project Management at Control Risks. I asked her why Control Risks had committed to RelativityOne.

The aim of Control Risks, Antonia Karlan said, was to provide the best solutions for its end clients. RelativityOne allowed Control Risks to integrate its own complex workflows with Relativity’s analytical tools. Continue reading →

Posted in Control Risks, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation Support, Relativity | Tagged | Leave a comment

Missing Legalweek for the first time since 2007

Posted on January 20, 2020 by Chris Dale

I have been going to Legalweek in New York every year since 2007. I am finally forced to accept that I will not make it there this year. The short version is that I was due to have a hip replaced in November, the date being chosen (to the extent that you can choose these things) very much with Legalweek in mind. With that interval, I should have been able not only to attend Legalweek but to walk around there without pain for the first time in years.

The operation was pulled at the last minute because a test which should have been done had not been done. As things stand, I do not have the new date, and nor do I know the outcome of the test in question. Put as shortly as possible a) I don’t want to miss an operation date if one is offered, b) I don’t fancy telling travel insurers that I have both a pending operation and a test whose result I cannot describe, and c) nine hours on a plane followed by a week of rushing around Manhattan doesn’t seem to make much sense in the circumstances.

That’s the nutshell version. The rest is of interest only to those who want to know about osteoarthritis or would like a copybook example of how the best-laid plans can fall to pieces. Continue reading →

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EDRM announces Global Advisory Council 2020

Posted on January 17, 2020 by Chris Dale

I recently published an interview with Mary Mack and Kaylee Walstad, the new owners of EDRM (the Electronic Discovery Reference Model). They had taken over EDRM only days before, and it was clear that they had plans to make EDRM a significant force in eDiscovery.

This week EDRM announced the formation of its 2020 global advisory council, chaired by Robert Keeling, partner at Sidley Austin. EDRM founders George Socha and Tom Gelbmann have roles as founder advisers. David Greetham of Ricoh USA is executive advisor and Craig Ball will serve as general counsel.

The list of members of the advisory council shows that EDRM is reaching widely and deeply into the eDiscovery world for collaboration and support (I should add diffidently that my name isn’t there because I was slow to reply to and accept EDRM’s kind invitation – a complete list will be published shortly). Continue reading →

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Interview: Kelly Atherton of NightOwl Global on using Relativity’s Active Learning

Posted on January 16, 2020 by Chris Dale

I have interviewed Kelly Atherton, Director of Analytics and Managed Review at NightOwl Global, several times over the years, mainly about the use of Relativity’s analytics tools. She speaks with the authority of one who uses these tools every day, and the interviews act as a record of the development of technology-assisted review.

NightOwl Global has always shown a deep commitment to the use of new software tools as they develop. I last interviewed Kelly Atherton when she and NightOwl were first starting to use Relativity’s Active Learning, and I wanted to find out how that use had developed. Continue reading →

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Consilio webinar: using magic and dragons to validate analytics

Posted on January 14, 2020 by Chris Dale

ConsilioTechnologists and lawyers are two groups of people who have their own arcane terminology, and it is perhaps unsurprising that they often miss each other in the dark.

I am fond of analogies and examples drawn from elsewhere – one of my favourite posts over the years was one in which I compared technology explanations to cooking, using it to urge technologists to accept that what seems simple to them may seem complex to others.

It can be helpful to tap into popular culture in giving such explanations. Consilio has done just that with a downloadable webinar called Validating analytics with magic and dragons. The Presenters are Sarah Cole, Julia Helmer, and Susan Stone, all of Consilio. Their aim is to explain how stories are made out of many small pieces of information which can be pulled together with the use of conceptual analytical tools. They use examples from Game of Thrones, Harry Potter, and Lord of the Rings to illustrate this. Continue reading →

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Interview: Jo Sherman of EDT on EDT’s work with artificial intelligence

Posted on January 13, 2020 by Chris Dale

At a Legaltech of long ago, I was given a demonstration of the discovery software of the company then called eDiscovery Tools. I asked if the software included a particular feature, and the demonstrator thought for a while and said “We don’t have that yet. Ask me again in two weeks”. I was rather impressed by this reply from what was then a small software company, with the ability to assess a suggestion and implement it quickly.

That company, now called EDT, is no longer so small. As founder and CEO Jo Sherman says in this video, the company has grown considerably over the last two years. I asked Jo Sherman to tell me what EDT is working on now.

Continue reading →

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DSARs and data breaches – advice on data governance from Integreon

Posted on January 9, 2020 by Chris Dale

A new article from Integreon brings us a new year reminder of the importance of looking after personal data. Called Sound governance for personal data, it is written by Clare Chalkley and Claire Frazer of Integreon’s London office.

The article’s focus is on two things. One is the power of the Data Subject Access Request, that is, the right given by the GDPR (though it builds on much older rights) to control what data is kept about them. The other is the ever-present risk of data breaches. These come in many forms, but the one which most closely affects individuals is the exfiltration of their personal data from a company which knows a lot about them. Continue reading →

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Legility and Inventus combine to deliver technology-enabled legal services globally

Posted on January 8, 2020 by Chris Dale

2020 kicks off with another piece of consolidation in the legal services / eDiscovery market, as Legility and Inventus combine. Legility is the acquiring company but its CEO, Barry Dark, says that it sees “the end-result as a merger between two market leaders”. An article by Sarah Brown of Inventus tells the story here.

The combined company, to be called Legility, brings skills and markets which both overlap and are complementary. The clients of 2020 work in global markets – Gartner’s prediction of about five years ago was that non-US markets for discovery-related products and services would grow at a faster rate than the US market, partly because they started relatively late, and partly because the economies of non-US regions would accelerate more quickly. That led Inventus to its close focus on the UK and Europe and on AsiaPac as well as the US, with its CEO, Paul Mankoo, based in London. Continue reading →

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FTI Consulting enhances its eDiscovery services with a partnership with Brainspace

Posted on January 7, 2020 by Chris Dale

FTI Consulting has marked the new year by entering into a partnership with analytics software company Brainspace.

The start of the new decade offers an opportunity to look back at the progress made in the past 10 years. You will be glad to know that I have no such ambitions, being more interested in the next decade than the last.

There are a couple of elements, however, that are worth mentioning in this context. One is that FTI Consulting’s technology segment was a big player in eDiscovery at the beginning of the decade and remains so now, while Brainspace barely existed 10 years ago. FTI Technology was and is a consulting company which, until recently, owned its own first-rate discovery software, Ringtail. That perhaps obscured the fact that FTI Technology was always willing to use the best tools for the job in hand. Brainspace’s claim to rank among the best tools is justified by the number and quality of those who work with it. Continue reading →

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Interview: Cristin Traylor of McGuire Woods, Attorney Tech Evangelist of the Year at Relativity Fest

Posted on January 6, 2020 by Chris Dale

Cristin Traylor is Discovery Counsel at McGuireWoods. She was the winner of the Relativity Fest 2019 award for Attorney Tech Evangelist of the Year, and I interviewed her shortly after the awards ceremony.

Cristin Traylor said that her interests lie at the intersection between legal and technology. Her role comes under two broad headings – advising clients on discovery, information governance, privacy etc, and managing the firm’s document review centre and discovery projects. As a result, she said, she spends a lot of time in Relativity. Continue reading →

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Interview: Scott Gillard of FTI Consulting on eDiscovery developments in Australia

Posted on December 18, 2019 by Chris Dale

I have known Scott Gillard of FTI Consulting for many years, mainly from brief annual conversations at Legaltech in New York. At Relativity Fest in Chicago, I had the opportunity to talk to him properly about electronic discovery in Australia and FTI’s role in it.

The investigatory and regulatory market in Australia is very busy, Scott Gillard says. The banking Royal Commission and its aftermath have consumed the entire market, with newly-invigorated regulators going after the banks, and considerable knock-on litigation. Continue reading →

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David Horrigan of Relativity and Chris Dale talk about their panels at Relativity Fest

Posted on December 16, 2019 by Chris Dale

It has become a habit at Relativity Fest that my last interview is reserved for David Horrigan, Discovery Counsel & Legal Education Director at Relativity.

One of the reasons for leaving it until the end is that David Horrigan is involved in so many panels that it is hard to catch him until the show is nearly over. This year he took part in ten different sessions over three days.

The best of those, he said, were the two which involved judges. One of those was the traditional judicial panel, now in its sixth year, at which judges survey the eDiscovery cases which have implications for litigators. You can find Relativity’s account of the judicial panel, written by Sam Bock, here. Continue reading →

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Interview: Cameron Tschannen of NightOwl Discovery on the use of analytics tools to cut the time and cost of review

Posted on December 11, 2019 by Chris Dale

At Relativity Fest I interviewed Cameron Tschannen of NightOwl Discovery about the use of email threading and textual near-duplicate identification in eDiscovery.

These tools, Cameron Tschannen said, are always used by default at NightOwl. They group documents together for organisational purposes and searches, and enable the safe removal of documents from review. This simultaneously reduces volume and increases quality.

Continue reading →

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Consilio is recruiting in London, Hong Kong and elsewhere

Posted on December 10, 2019 by Chris Dale

ConsilioWhen I interviewed Andy Macdonald, CEO of Consilio, after one of Consilio’s acquisitions, he was keen to emphasise that buying successful companies was not the only way to expand a business. Certainly, buying the right company will usually bring a wave of good new people into the business, but it also encouraged applications from elsewhere. As Andy Macdonald put it, companies which are seen to be successful attract successful staff.

Consilio always has a list of open opportunities on its careers page.  Two in particular caught my eye. One is for an eDiscovery Project Manager in Hong Kong. The other is for the Head of UK Client Experience for Consilio’s Self-Service Business Units based in London.

Consilio has expanded its Hong Kong presence considerably since I was last there, consistent with Consilio’s quest, led by client demand, to be able to provide a full service across the AsiaPac region. The requirements include a willingness to travel both domestically and internationally. The London role is primarily to serve UK clients, but extends to supporting non-UK clients as required. Continue reading →

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Interview: Pavan Kotha of Deloitte on winning the Lit Support All-Star Award at Relativity Fest

Posted on December 9, 2019 by Chris Dale

Pavan Kotha is a manager at Deloitte. I met him at Relativity Fest in Chicago where he won Relativity’s Lit Support All-Star Award.

Pavan Kotha is clearly a man who loves his job. He says that he likes to share his knowledge with the discovery community, and that the recognition given by the All-Star Award encourages this approach. He appreciates the support which Deloitte gives to its staff

I asked him what he found most exciting among the new Relativity functions. Like several others to whom I spoke, he most values the new ability to handle short message formats. Exchanges between people may take many forms – perhaps originating with an email, transferring to WhatsApp, and ending in a phone call. The result is complex to review and it is very difficult for reviewers to get a sense of the story if they work only with email. Relativity’s storyboard approach, Pavan Kotha said, gives reviewers an ‘eagle’s eye’ overview. Continue reading →

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Interview: Wendy King of FTI Consulting on RelativityOne and on the changing role of GCs

Posted on December 6, 2019 by Chris Dale

Wendy King of FTI Consulting is an interviewer’s delight, giving crisp answers which tell us all we need to know in as few words as possible. I took the opportunity to talk to her at Relativity Fest in Chicago.

I asked her first about the Relativity migration service which FTI announced at ILTA (and which I wrote about here). The migration of data can be complex and time-consuming. It needs considerable skill, not least on project management, and it is helpful to involve a company like FTI who knows what to prepare for and what to look for afterwards. Continue reading →

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Hammering the point home – the importance of social media in eDiscovery / eDisclosure

Posted on December 3, 2019 by Chris Dale

It is only a couple of weeks since I last wrote about the importance of social media in eDiscovery / eDisclosure (When the car sneaks on you and your social media betrays you).

I come back to it so quickly, partly because its importance cannot be overemphasised, but mainly to give you links to two articles which both emphasise the point and give practical examples of its application.

The first is (another) article by UK civil procedure expert Gordon Exall, whose Civil Litigation Brief gave me the opening for my last article.

Gordon Exall’s newer article is called Civil procedure back to basics 69: social media and the litigator: a recap. It is a summary (and not a short one because there is a lot to say) of recent cases in which social media has featured, with pointers to other sources. It includes examples from other jurisdictions (the US and Canada, for example), and the points emerging from the cases are applicable in most jurisdictions where discovery is required. Continue reading →

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Sharing knowledge and ideas with Nuix Community

Posted on December 2, 2019 by Chris Dale

Like many people, I constantly need to improve my knowledge of the software I use. I am teaching myself video editing at the moment, and frequently need help either on very specific things (“Where is the menu option for this function?”) or for more general (“How do I get the best results when trying to do this or achieve that?”).

I sometimes use the manual. More usually, I put a query into Google and almost invariably find that someone else has posed the same question and that it has been answered, perhaps by more than one person and with more than one suggestion. I ought perhaps to get some formal training as well, but for now this reliance on a shared community of interest is enough for my purposes.

The same applies to professional software used for discovery or business purposes. New users of software like Nuix will want training, but it is helpful also to be able to call on others who have been there before and who have worked out ways – new ways or just different ways – of using functions or achieving objectives. Continue reading →

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Interview: Ben Sexton of JND on how RelativityOne encourages new ideas to help clients

Posted on November 29, 2019 by Chris Dale

At Relativity Fest, I interviewed Ben Sexton of JND about JND’s use of Relativity One. What led to that decision, I asked, and what were the perceived benefits?

 

Ben Sexton said that JND’s primary focus was on serving clients. Before the move to RelativityOne, they had had to be half focused on IT and half on being solutions providers. RelativityOne allows JND to concentrate on being a solutions provider without having to worry about the server going down and other aspects of infrastructure support. Continue reading →

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Interview: Mary Mack and Kaylee Walstad on their plans for EDRM

Posted on November 25, 2019 by Chris Dale

I wrote recently about how Mary Mack and Kaylee Walstad had turned ACEDS into “an educational force to be reckoned with”. In the same article, I reported that they had acquired EDRM (the Electronic Discovery Reference Model). I had to wait until I saw them at Relativity Fest to find out what their plans are for EDRM.

EDRM is, as Mary Mack makes clear, much more than the model. It runs projects, including a GDPR project, and will be considering whether changes to the model itself are necessary or desirable. Another project is a community-sourced stop-words list.

EDRM crosses borders, both geographical borders and functional borders. One can join in from any jurisdiction, and from legal, IT, security or any other related discipline. Continue reading →

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When videos come, they come not single spies but in battalions

Posted on November 18, 2019 by Chris Dale

The drafts of the 23 video interviews recorded at Relativity Fest have landed on my desktop for comment, for sending back for any amendment, and for sending out for approval.

I may be some time….

Normal service will be resumed shortly.

Home

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When the car sneaks on you and your social media betrays you

Posted on November 11, 2019 by Chris Dale

English barrister Gordon Exall, he of the Civil Litigation Brief who is constantly informative as @CivilLitTweet on Twitter, reports on an interesting finding of fundamental dishonesty in a claim about an alleged motor accident. The judgment is Wise -v- Hegarty & Alpha Insurance (9th July 2019) and Gordon Exall’s blog post is here.

Craig Ball, former trial lawyer and doyen of US forensic experts, is rightly fond of saying that this is the “greatest time ever to be a litigator” in terms of the evidence which modern devices bring us. I interviewed him here on how mobile data increases lawyers’ ability to uncover the truth. By “mobile data” one generally means data created, collected and disseminated by the kind of mobile devices which most of us carry around with us. Years ago, however, I did a panel with Craig Ball on this subject in the US, and he gave us an illustration of a motor accident represented by two moving dots on a map. The data in the car (whether it was a property of the car or its passengers) would, he said, provide evidence about accidents and their causes. Continue reading →

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Moderating a discovery pilot panel at ILTACON Europe on 13-14 November in London

Posted on November 5, 2019 by Chris Dale

For some years, ILTA (the International Legal Technology Association) has had an event in London every November. Previously a one-day event called INSIGHT, it has been renamed ILTACON Europe and extended to two days. The website is here and the programme is here.

Disclosure has been given proper attention, with a panel on Thursday at 11:30 called The Disclosure Pilot: The Disclosure Review Document and Technology. The Big Questions! The panel members are Vince Neicho, Vice President-Legal Services at Integreon, Jeff Shapiro, eDiscovery Support Manager at Clifford Chance LLP, Andrew Haslam, eDisclosure Project Manager at Squire Patton Boggs, and Clare Chalkley, Vice President Legal Services at Integreon. I am the moderator. Continue reading →

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Interview: Justin Tebbe of Inventus on managing eDiscovery projects on a global basis

Posted on November 4, 2019 by Chris Dale

At Legaltech in New York, I interviewed Justin Tebbe who is Senior Director, Technical Solutions at Inventus. I was interested to know how he and his colleagues in other parts of Inventus work together for the benefit of the clients.

Justin Tebbe said that he is responsible for the US operation of Inventus, for hosting, and for working with development partners using specialised tools. He also gets involved in global initiatives, liaising with his counterparts in other jurisdictions as well as other departments.

Justin Tebbe gave a practical example of the benefits of working like this. A project which started in the US, with processing and review already well underway, had to be rolled out in Germany. The transfer was seamless, with the new team using the same templates and the same fields, and getting exactly the same experience as their US counterparts (who remained involved in the project).

Inventus tracks projects with its own ticketing system and workflow management system holding all the information about the project, including the individual tasks which need to be done. If one person deals with some stages, the next one can pick up where the last one left off.

It is also business intelligence software, with real-time data on how much has been reviewed and where it has got to.

Justin Tebbe said the clients are more global. Inventus is a global business with offices around the world but it offers a single experience to its users everywhere.

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