Ari Kaplan and Relativity on maximising data collections

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

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

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

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

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

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

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

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Hard copy documents destroyed after notification of a claim

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

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

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

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The text of the Disclosure Pilot amendments from 1 November

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

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


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Navigating the Disclosure Pilot – ACEDS webinar on 15 November

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

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

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

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

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

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The main points from the International Panel at Relativity Fest

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

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

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

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Relativity Trace gets new data cleansing capabilities

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

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

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

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

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

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

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

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

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

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

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

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Emoji eDiscovery – coming to a case near you shortly

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


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

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

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

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

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

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

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

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Disclosure Pilot update includes simplification and extension to December 2022

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

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

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

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

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

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

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

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

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

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

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

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Another UK government IT glitch wipes inconvenient Treasury text messages

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

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

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

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My eDiscovery interview with Tom O’Connor and Rachi Messing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The different purposes of Twitter and LinkedIn – a personal view

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

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

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

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Relativity highlights EMEA growth and unveils product updates

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

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

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

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

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

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

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

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

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

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

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

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Andrew Haslam’s eDisclosure Systems Buyers Guide 2021

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

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

Continue reading

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Relativity Fest London – virtual event on 18 and 19 May

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

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

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

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

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

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

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

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

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Interview: Relativity’s APAC managing director, Georgia Foster

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

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

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

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RelativityOne Asia expansion continues with South Korea hosting

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

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

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

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

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

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

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

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

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

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

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

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KPMG brings RelativityOne to Singapore

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

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

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

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Relativity investment to support cloud-based eDiscovery and AI

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

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

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

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

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

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

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

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

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

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

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Legal Tech Conference 2021 from Dublin on 25 March

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

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

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

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

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

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

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

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

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

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

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

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

Automatic Justice: The Role of AI in Judicial Determination

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

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

There is more information and a registration form here.

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

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

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

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

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

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

Guide to eDiscovery in South Africa

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

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

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

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

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

Nuix Global Regulator Report

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

The subjects covered in the report include:

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

What the Bar can learn from US trial lawyers

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

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

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

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

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

Moving the Civil Procedure Rules

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

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

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

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


The Snow Moon

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


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Relativity turns its AI skills to Pandemic analytics

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

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

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

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

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Rather more than a week’s eDiscovery notes

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

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

February has seen:

My interview with John Tinsley of Iconic

A redaction initiative from Relativity

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

Two judgments on the destruction of potentially disclosable documents

The announcement of Relativity’s new initiative with X1

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

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New integration between RelativityOne and X1 accelerates preservation and collection

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

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

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

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Two document destruction judgments in England and Wales

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Supreme Court refuses permission to appeal on emailed attachments and privilege

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

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

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

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

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

Update your website contact details

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

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

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

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

Overhaul of discovery procedures in Ireland Continue reading

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Relativity acquires VerQu to capture communication data

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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More updates on proposed changes to the Disclosure Pilot

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

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

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

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

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


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

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

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

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

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

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

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

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

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Collecting together some articles on updating the Disclosure Pilot

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

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

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

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Eddie Sheehy and the disappearing Nuix share options

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

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

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

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

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

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

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Considering the context before commenting on the content

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

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

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

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

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

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Interview: Jordan Domash of Relativity talks about Relativity Trace

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

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

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

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

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

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

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

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

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Looking back at the International Panel at Relativity Fest

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

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

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

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

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

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

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

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Steve Couling of Relativity talks about Relativity’s Aero UI

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

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

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

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Preparing for a virtual panel and recording a remote interview

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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ACEDS webinar on 9 September – arbitrations and UK eDiscovery

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

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

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

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

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

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Staycation – decluttering, destruction and decoration

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Relativity Fest London – eDisclosure and global eDiscovery panel today

 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

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

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?

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

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

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

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

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

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

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

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

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

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

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

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

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

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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