Part of the function of the e-Disclosure Information Project is to keep up with what the providers of software and services are doing. Given my emphasis on the human aspects of this business (which recurs in this blog and elsewhere in the form of questions like “Would you trust them with your client’s data? Do you like them?”) it is important to keep in touch by going in to see providers or welcoming them out here in Oxford. Since I neither buy nor directly recommend anything, these sessions are free of sales pitches, save in the subliminal and low-key sense that there is a mutual interest in sharing information.
I always seem to have a backlog, both of outstanding invitations and of writing about them. That reflects the balance between things I do directly for the Project’s sponsors, the wider objective informational aspects, the range of material which has to be read from the various jurisdictions in which discovery takes place, and the fact that there is always a conference organiser bullying for a set of slides.
KPMG comes to mind every day for the wholly obscure reason that my coffee cup sits on a tile which was the 1993 Christmas present from KPMG Forensic Accounting. It is functional as a mat, albeit that it shows a 1994 calendar. Like KPMG itself, it can claim longevity in a market which is full of new companies, staffed by people who were still at school in 1994, and in which corporate freebies have a marketing life of about ten minutes. I must have been on their mailing list on the strength of accounting negligence claims which I had run as a litigation partner (including JEB Fasteners v Marks Bloom in 1984 and Al Saudi Banque v Clarke Pixley in 1990, both still cited).
Forensic Accounting and Forensic Technology morphed into each other (that is, they are distinct subjects but have obvious overlaps) and KPMG were one of the first into electronic data investigations in the UK for much the same reason I was pushed in the same direction by the Al Saudi Banque case. My path did not cross theirs, however, until the coincidence that I launched the e-Disclosure Information Project in the same week in October 2007 as KPMG published their report on practitioner dissatisfaction with the way the courts handled disclosure under the CPR. Commenting on it at the time, Paul Tombleson, Head of Forensic Technology at KPMG Forensic, said:
“As electronically generated and stored information continues to proliferate, lawyers have expressed some clear concerns that the rules have not kept pace with the reality of the modern business world. E-disclosure can be immensely complex, costly and challenging, and litigators have called for renewed energy in agreeing clearer case management guidelines. Many of them also clearly believe that some training for judges could be beneficial.
Technology may have created the problem, but technology can also be part of the solution. Lawyers need to be aware of the tools that exist to help them manage the information load, as well as devise review strategies to make the task easier.
E-disclosure, as technical as it may seem, is in many ways at the heart of the modern litigation process, so it is clearly of great importance that the issues lawyers have raised here are debated, discussed and acted upon.”
The message was the same as mine, and its backing, in the form of a survey of some of the larger litigating firms, was one of the external factors which supported what I was saying. The other was the introduction to the Commercial Court Long Trials Recommendations, published a few weeks later, which said that neither judges nor parties were imposing the CPR with sufficient rigour and that there needed to be some re-education. If you want allies in fighting unfashionable causes, then to have the likes of KPMG and the Commercial Court Working Party saying the same things as you is useful reinforcement.
I spent a morning recently with KPMG Forensic Technology at the invitation of Alex Dunstan-Lee, Head of e-Disclosure. Also present were Paul Tombleson, referred to above as Head of Forensic Technology, Tom Hopkinson and Julie-Anne Moors. One of the things which interests me, and which applies equally to others in this space (which is why I write about it), is how a large software or services provider can convey the message that not all its work is done for very big clients on very large matters. I will keep my powder dry on the subject for a paper I am about to write for a Project sponsor, but KPMG’s approach includes using its network of regional offices to deliver talks on the subject. The point (my point, not expressly theirs) is not that the regions are in fact stuffed with document-heavy litigation but that they should be – if you take account of cases which go down to London and cases which never happen because of the perceived expense, there is much scope for regional firms to attract good local work, and corresponding scope for businesses to use their local lawyers supplemented by the skills of litigation support providers.
One of the problems I see is that providers inevitably feel the need to shout about their skill at handling large volumes, which tends to put off those who do not have large volumes. The expensive part is the review stage and what matters is how quickly and cheaply one can cut through irrelevant material whilst maintaining quality – how much junk can you throw away without risk of losing something which either ought to be disclosed as a formal matter or which you would want to see anyway? One of Alex Dunstan-Lee’s slides showed an example reduction to 6% of the source volumes, using Attenex from FTI Technology to do most of the heavy lifting on the processing side. Such reductions are not unique to either Attenex or KPMG – the important thing for would-be users to grasp is that a multi-TeraByte source is a reason for seeking an estimate, not a reason for abandoning the proposed litigation.
The policy, professional and cultural debate which springs from this is about the extent to which “good enough” is good enough. How do you quantify the risk of missing something in circumstances where the alleged “gold standard” of human review is not up to the task of finding everything? What is the right balance between perfection and cost, in circumstances where the technologists, if not yet the lawyers, have come to accept that we will never reach a perfect set of search results at a reasonable level of cost? Discussions like this are going to become more necessary as volumes increase, and this kind of informal forum is a good place to have them.
What applies to litigation applies equally to regulatory investigations. KPMG’s experience is that regulators are coming to the idea that a co-operative approach to getting quickly and cost-effectively to what matters is sensible as a policy matter as well as a practical approach to individual cases. Blanket demands for “everything” are being replaced by discussions of the same kind as are required by the Practice Direction to Part 31 CPR and endorsed by the approach in Digicel (St Lucia) v Cable & Wireless. It needs a higher level of skill and thought at the outset, but almost always results in lower review costs.
The trend, both in technology terms and in practice, is to expect earlier case assessment – a good example of technical innovation first matching and then defining what might be expected from a party to litigation or to either side in a regulatory investigation. KPMG showed me two applications designed for the purpose.
One was Autonomy’s Aungate Early Case Assessment application. I am familiar with this anyway, since Autonomy is among the sponsors of the e-Disclosure Information Project and I have seen it on three continents. It is interesting, nevertheless, to see it demonstrated by someone else – not better or worse, just different and, as a result, bringing out aspects which I had not seen before. The other was Clearwell, whose claims to transparency in search seemed borne out by the short demo.
What is confusing for the would-be buyer (or, at least, one of things which is confusing) is that there is more than one front door by which you can gain access to these world-class tools – you can have FTI’s Attenex or Autonomy’s ECA applied to your data via KPMG, by FTI or Autonomy themselves, or by others. Clearwell is available via KPMG and the much smaller, but no less competent, Legal Inc; all of these companies have access to other tools which are right for the job. Where do you start?
I come back to what I said at the beginning – the importance of trusting and liking those with whom you do business. I am not suggesting that being nice people is an over-riding factor relative to competence and price, but it helps. The smallest of the companies mentioned in these pages is capable of, and does, work on some very big cases; the largest can do smaller jobs cost-effectively as well as the very biggest work. The point of the references and links which I provide is that they are an introduction to a range of suppliers of applications and services which between them, and often in tandem with others, cover the full range of tasks which lawyers and their corporate clients need to face litigation or a regulatory investigation completely and confidently.
You could wait until a problem strikes you and make an urgent call to the provider whose name was the last one mentioned to you. You could go to the opposite extreme and examine exhaustively everyone offering software and services. The best course is to pick a handful – a big services provider and a smaller one plus a couple of applications providers. The latter offer their own consultancy services, so you can go to them direct as well as through others.
This is not entirely random – I have a general policy, on this blog at least, that if I have not got something nice to say about someone, I do not say anything (government politicians apart, obviously), so any link taken from these pages is to someone worth consideration. The overlapping functions and the breadth of experience which they offer mean that there is no such thing, in the abstract, as just the right supplier for any type of firm or case. Pick two or three of the links down the side of this page and arrange a meeting. They will be pleased to hear from you.