Those of us who work in e-discovery / e-disclosure get better and better at passing information and views between ourselves. Web sites, blogs and Twitter allow us to keep up with developments – new products, company news and cases – in a market which changes all the time. Improvements in the mechanics of information delivery do not make it easier for new readers (which is the audience which matters) to understand it all. Can we turn this stream of information into a community of interest?
The word “community” has been hi-jacked by the woolly thinkers of the soft left. Private Eye runs a regular column pillorying those who write of meaningless “communities” whenever two or more people have some characteristic in common. The expression “community of interest” has a meaning worth keeping, however, and is correctly used (and hard to replace) when different groups have common ground. The one in which I am interested is the loose assembly of lawyers, their clients, judges and technology providers who aspire to the proportionate use of electronic documents in litigation. That aspiration is purely notional in many cases, mainly because many of the players do not fully understand what the others need or can offer.
This article began as a way of covering many apparently disparate pieces of news or information in one place. As I wrote it, themes began to emerge which mapped on to some of the conversations which I have with lawyers seeking a quick ramp into the broad options which they face when e-disclosure becomes inevitable. We who have grown up as the industry grew up throw names and terms at each other, as if the audience shared the building-blocks of knowledge. They do not. Running several stories together may make for a long article, with loops and digressions as I expand on things which seem obvious to industry regulars, but those to whom it is all new may find that helpful.
One of the links which I intended to pass on anyway happened to be an interview in which Richard Susskind argued for better use of social media and for the development of a community of interest between the participants in the wider legal IT industry. That neatly tied in with my plan to base this article round a series of tweets, and suggested by extension that Twitter provides a ready-made core for such a community. It does so already for those on the inside. We need to invite the users in.
Twitter as an update mechanism
I did a dozen or so tweets or re-tweets on a single day last week of stories which interest me. Most concern edisclosure / ediscovery, although one was an RT of a tweet from @Queen_UK (whom I assume not to be the genuine article) whose comment:
No, one will not be sharing the Popemobile. This Head of State and World Religious leader has a Bentley
… captures succinctly an attitude to the Papal visit with which many of the real Queen’s subjects seem to sympathise. Twitter is good at capturing mood, on a wisdom-of-crowds basis, as well as passing on facts.
My increased use of Twitter has multiple purposes, one of which, obviously, is to draw attention to things – announcements, conferences, articles etc – which I think are important, interesting or both. I will go through some of the tweets below. The other purpose, however, is to try out the use of a Twitter app on my new web site’s home page as part of a exercise to make the latter a more useful resource. This is part of a change in how I plan to use the tools available to me to spread information. My web site has been a largely static resource – a description of what I do, contact details and a few generic articles about edisclosure. Apart from pointing to my most recent and most-read blog posts and listing conferences I have not used the web site as an active resource.
Most of my output goes in my blog, where I put 250 posts last year. Some of them take the best part of a day to write and they are generally meant to be comment rather than news. I take the view that if the subject-matter is important, it will be no less so in a month’s time and there are others who pass on news as it happens. Even if I had time to write up everything of interest and importance, I am not keen to dilute my blog’s role as a place for thoughtful commentary.
Using Twitter as an update mechanism for the web site has one big advantage – I can do it from anywhere, must be concise, and can hit two audiences at once. I don’t have to be at my desk (or, indeed, in the country) and the readers need not go to Twitter. The rate at which information comes up in this field, and the range of it, is illustrated by the subjects covered in that group of tweets. Not all related to information which was released that day, but none of it was old. Taken together, they would give the lay reader (who is the intended audience of much of the material which is published), a good idea of what is going on.
A day’s worth of Tweets
The first of the day originated with me, and read:
AccessData joins the e-Disclosure Information Project
– the news that AccessData had become the most recent addition to the list of sponsors of the e-Disclosure Information Project.
In addition to its traditional work on forensic collections of data, AccessData now owns the Summation eDiscovery tools – a good example of the trend amplified on below of companies extending beyond their original areas of expertise to offer a wider (and in this case complete) range of applications and services. The story itself is easily understood by anyone, but the first glimmerings appear of something which the experts take for granted but which confuses those new to e-disclosure. E-Disclosure is an exercise with multiple stages, and different technology providers operate in different parts of it. Not everybody does everything (though some do), so there is more to selection than merely comparing functions and cost. Try explaining that succinctly to a lawyer who had hoped to find it easy.
The next two stories illustrate why the non-expert often finds the whole thing bewildering. By chance, two of the stories of the last few days about the sponsors of the e-Disclosure Information Project also concerned Relativity. They were:
Nuix becomes Relativity ISV to offer integrated E-Discovery Technology
Accelerated review with Trilantic and Relativity
… which relate, respectively, to partnering arrangements of different kinds struck with Relativity by another software company, Nuix and a litigation support services provider, Trilantic – more on both of them below.
Many of those reading this will interpret the few words of those tweets in an instant, absorb and understand what they mean, and move on, slightly better informed about the market. For many, however, it is just noise – the company and product names mean nothing, and the fact that A is doing business with B has no obvious bearing on next week’s obligation to give discovery / disclosure of electronic documents. To decode it, we need to look at what functions may have to be performed.
The processes and stages of an electronic disclosure exercise are conventionally illustrated by this diagram, the Electronic Discovery Reference Model or EDRM:
Most of the stages shown on the EDRM have plain English names which describe what is being done. The exception, for a lay reader, is “processing” which can mean any number of things, but here means (using the EDRM definition) “Reducing the volume of Electronically Stored Information and converting it, if necessary, to forms more suitable for review and analysis” – getting rid of files which are patently of no use and removing duplicates, for example. The expensive stage is review – “Evaluating ESI for relevance and privilege” in EDRM terms – because that is generally done by lawyers reading the documents which survive the earlier processing stage. “Review accelerators” are software applications which speed up the process, e.g. by grouping near-duplicates together, identifying the “inclusive” email which includes all the others in the thread, assessing relevance by “learning” from an expert, or by “predictive coding”.
Many of the discussions which I have with lawyers involve explaining the inter-relationship between these stages – that some companies are expert at collecting data, others have software tools which process the data, and some sell review applications. Some companies stick to their niche whilst others have extended their functions to left or right of their starting point by development or acquisition; a processing application may have review facilities, a review tool may do some processing, and a collections company may offer application hosting facilities. Some software companies offer consultancy; others do not; others again offer only consultancy and have no software of their own, but have partnering arrangements with a range of suppliers.
That diversity in fact offers a rich range of choices and a competitive market-place; to the novice, it just looks confusing. I do not, for obvious reasons, steer my callers to any one provider, but summarise what each does and suggest that they pick one or two and contact them to find out more, who else they work for and what the basis is for their charges. Of the names mentioned in the tweets which were my starting-point, Relativity is primarily a review application; Nuix has fast processing tools and turns up all over the world as a means of getting quickly to the documents which matter (whereupon either the matter either settles because you already know the answer or the data moves on to the review stage); Trilantic is a general litigation services provider who will get a job done with a mixture of its own resources and those of its partners or sub-contractors. All are well-known, none of them is unique in its field, and their names come up here because of the coincidental timing of their announcements.
The next one was in fact written for an audience which is new to the subject. It passed on a tweet by the excellent InfoRiskAwareness site (not strictly a re-tweet, or “RT”, because I edited it) and it read:
Best practice guide from @chrisdaleoxford (that’s me) UK e-disclosure risks calculable & containable
…. and pointed to an article which I wrote for them called UK E-Disclosure Risks are Calculable and Containable. The trigger for the article was the UK’s new E-Disclosure Practice Direction and its associated Electronic Documents Questionnaire. Although written for the non-expert audience, there are subliminal messages in this article for those who provide e-disclosure services. I am keen to emphasise simultaneously that the Electronic Documents Questionnaire is not compulsory in all (or, indeed, many) cases AND that it will be useful in many more cases than those where it is compulsory.
Some of the questions are obviously for the lawyer to answer (if he does not know what date range is relevant, it is perhaps time to start thinking about that). Others, those about servers or databases, may need technical input. Others again may need a mixture of skills, such as discussions with the client and its IT department, where a support provider may easily justify his fee by his ability to get quickly to the point and to translate the answers. Providers need to make it clear that they offer this service.
A different angle appears from the next one, which read:
FTI Technology launches FTI Investigate for Cross-Border data discovery
This is about a new service from FTI Technology, whose press release is headed FTI Investigate™ Delivers Rapid and Secure Data Discovery on Site, Globally. No subject raises as much baffled US incomprehension as the cross-border implications of collecting data in multiple jurisdictions, particularly where one or more EU locations are involved. There are three categories of lawyer involved here – the very few who know what they are doing and whom they should involve to help them, those who know there is a problem but are not sure what to do about it, and those who first appreciate the limits of US authority when they demand EU documents and are met with variants on “Non”, “Nein” and “Naff off”.
You need a mixture of local legal knowledge, sound technology and, often, big teams for this sort of work. FTI is well-placed geographically and has the technical and human resources to deal as promptly and efficiently as possible with the hurdles which undoubtedly exist in this context. The press release includes a comment by Craig Earnshaw of FTI’s London office which reminds us that regulatory intervention is increasing – litigation is not the only context in which privacy and data protection issues are overlaid on data collection exercises which may already have challenges enough. Few UK law firms seem to have focused on the fact that speaking English, having a discovery tradition, and being behind the EU firewall adds up to opportunity to get involved in this kind of work. It is worth reminding them occasionally.
The next tweet brings us to a different area again, the decision by companies to take al or part of the e-Discovery process in house. It read:
Guidance Software webcast with Debra Logan of Gartner – bring eDiscovery in house
…and pointed to a webcast given by Guidance Software’s Russ Gould and Debra Logan from technology analyst Gartner. There are three broad ways to manage e-discovery exercises as a company – outsource the whole problem, divide the work between the company, its lawyers and one or more technology providers, or take as much as possible of it in house. If you have any appreciable volume of litigation, regulatory or investigative work in a year, then taking it in house must be a serious option. Guidance Software has solutions which begin with its expertise at data collections across the network and are extending rightwards across the EDRM (see above) into first pass review with its latest release of EnCase eDiscovery V4. So there is another one with its roots in one area which is spreading its skills and its technology into others.
My next tweet was more about information management than about ediscovery / edisclosure, although its subject is a company which offers solutions in both areas, separately or together. The tweet read:
Mishcon De Reya partners with Recommind to overhaul information management infrastructure
…which referred to a Recommind press release about Mishcon de Reya’s plan to install Recommind’s Decisiv Search (formerly known as MindServer Search) and Decisiv Email Management (formerly known as Decisiv Email) solutions, as well as the QwikFind toolbar, to overhaul the firm’s management of electronically stored information. This will integrate with the firm’s existing databases as well as external content to create one comprehensive search environment.
This is not strictly an e-disclosure story, since it relates to a law firm’s own information management systems. It connects to e-disclosure in two ways, however. One is the fact that Recommind has its Axcelerate e-discovery applications called Axcelerate ECA & Collection and Axcelerate Review & Analysis. The other is a curiosity: law firms of any size have these amazing systems for managing their own information, but many of them (not, I am sure, the firm mentioned here) seem taken by surprise when it comes to dealing with their clients’ data. Those facing up to having to discuss their client’s electronic sources might care to enumerate for themselves what they might have to produce if sued for, say, the negligent conduct of a file. The Word documents and spreadsheets, of course; the email – but how far back do we keep email, what happens to it when it disappears from my folders, who else would be relevant custodians and how do I find the ones which relate to that matter (quite apart from subsequent questions like whether they are privileged or, indeed, if they have any bearing on the claim)? Time records? Entries on SharePoint or any other central databases? Does everything on my BlackBerry replicate to the mail server? Mobile phones? Work taken home?
It is not a bad way to get your mind round what might exist and what it would be proportionate to search for and preserve for your clients’ cases. And you might, of course, conclude that your own systems need to be reviewed, in which case Recommind would be pleased to hear from you.
That same theme – that information management flows through into e-discovery / edisclosure, turns up in my next tweet, which read:
Iron Mountain consulting arm combines records management and eDiscovery expertise to cut information costs and risks
… which is a straight copy of the title of a press release. Iron Mountain, of course, was storing information before computers ever reached businesses, and has extended its reach into software (including the Stratify e-Discovery applications) to manage all electronic data types. It seems an obvious step firstly to offer all its products as a single unified set across the whole range of data management functions, and secondly to emphasise the consultative element needed to advise on the continuum from creation to disposal via all the way-points including e-discovery. That is what the press release is about.
This cradle-to-grave approach might obscure the fact that companies like Iron Mountain continue to offer free-standing e-discovery services competing with others from their London base for UK and EU litigation and regulatory matters as well as US-derived work.
Twitter is a good way of passing on news of new software releases or services – there is a whole subject there, for law firms as well as for technology suppliers on how to make your news interesting enough for others to pass on for you. Clearwell provided an example of a software announcement, and my tweet read:
Clearwell extends Its E–Discovery platform with new identification and collection module
.. which was, again, copied from the title of a press release. This is another example of a product which has moved beyond its original scope, in this case from collection and processing, where the Clearwell EDiscovery Platform has its existing reputation, into early case assessment. Version 6 focuses both on streamlining the often iterative stages of the process and on co-operative working between law firms and their clients.
This is not the first reference in this article to the balance between in-house and external working, nor on the growing requirement to streamline the processes and integrate the teams. Law firms would want to know a bit about the options here, would they not, if they are not to become merely bit-players in the clients’ processes?
A different angle on this turns up in another of my tweets of that day, which said:
Epiq Systems announces new managed review legal services facility
You are a law firm or company with a fluctuating requirement for document review, or perhaps you have been hit by a case which outstrips the available resources, Alternatively, you just want to focus on your core business – being a lawyer or making and selling your products – and would like to send any non-core work to others.
I wrote recently about Epiq Systems’ new managed review operation in London (see Epiq launches European document review service). I was amongst those who spoke at the launch, and drew attention in my report to some general points about services like this, to the extremely professional setup, and to the fact that, although Epiq have their own highly rated review application, DocuMatrix, their document review service was destination-neutral. In other words, whilst Epiq would be very pleased if DocuMatrix was your review platform of choice, they would prepare the data to go wherever you like.
The new announcement is about the replication of that function in Manhattan. Epiq’s Laura Kibbe, who is responsible for the roll-out and management of the review facilities, makes the point that the reviewers are not only legally-qualified with whatever seniority is appropriate to the task, but can be chosen for their experience in the subject-matter. How many law firms can offer that from their own resources?
Twitter as a binding force for a community of interest
That brings me to the interview with Richard Susskind. My tweet read
Richard Susskind on social media and Legal IT Software Suppliers – 2 of 3 articles
As always with a Susskind article, you start quoting from it and find it hard to stop. I will pass over, for the moment, the detail in the section about legal technology suppliers; Susskind says of them that they “have got to position themselves as trusted parts of the legal sector rather than suppliers to it”. That is exactly what I try and help them do, and it warrants more than a brief mention in an already long article, so I will come back to it.
The bit which is relevant to my theme is the first part, about using social media to build communities of interest. The litigation support industry has done that rather well on Twitter in the international (mainly US) context, although we have yet to see much use of the #edisclosure hashtag for the UK market and we are, as yet, talking mainly amongst ourselves, not to the hoped-for clients. The two parts of the article, taken together, suggest that the shift in the role of the technology suppliers which Susskind predicts, and the creation of a community of interest, will be facilitated – indeed, will only be possible – using Twitter or something like it. Go back to what I said at the outset about how the Queen_UK Pope tweet managed to capture an attitude in a few characters. I foresee a time when this will be the way in which all sides involved in e-discovery / e-disclosure will advance the idea that they are all working to a common end.
That is in part why I am drawing attention to my own Twitter stream – those with @chrisdaleoxford in them – on my planned new web site. At one level, it is a shameless way of increasing my own profile, and therefore the profile of those whose logos appear on my site. More importantly, though, it might encourage others to join in – not just the suppliers offering solutions, but lawyers posing problems, reporting the reactions of their partners and clients, and giving at least anecdotal accounts of outcomes. In due course, we need a different hashtag, preferably one which jumps over the #ediscovery / #edisclosure split. For now, using my own Twitter name means that my tweets, replies and re-tweets, and any which include my Twitter name will collect together automatically. The type of community which I envisage will need no such centre.
The final two tweets of that day were both from me. One promoted a panel which I am leading at the Masters Conference
Senior Master Whitaker from UK and Justice Einstein from Australia to be moderated by Chris Dale at the Masters Conference
It is not surprising either that I should be doing such a panel at the Masters Conference, or that I want to encourage as many people to attend it. It is what Twitter does best.
The other picked up both the most important recent US sanctions case and a side reference to me which I appreciated. My tweet said:
Craig Ball on Judge Grimm and Victor Stanley II – flattered to have my “wry understatement” compared with Judge Grimm’s
This is a reference to an article by Craig Ball headed Victor Stanley II: A Swift Kick in the Bass in which Craig was kind enough to say of a sentence of Judge Grimm’s that it was “A wry understatement worthy of Chris Dale”. That is flattery indeed.
“Wry understatement” is my stock-in-trade, a deliberate antidote to the “earnest overstatement” which is endemic in this industry. If technology providers are to make the transition from mere suppliers to trusted advisers which Richard Susskind predicts (and his record as a prophet is pretty good), then we need to focus less on mere functions and more on benefits. All the bandwidth used by screaming “world-leading”, “the best”, or “unique and revolutionary” is bandwidth wasted, automatically filtered out by the reader. He (or, quite often, she – a point worth remembering as you polish up your techno-speak), is much more interested in how the product or service will help him or her offer a better service to clients. This can quite often be hard to find amidst the hyperbole.
As I have said, I make no claim to be the centre of this putative community of interest, nor should it need a centre. The diversity (there’s another word now stripped of meaning by well-intentioned do-gooders) of the subject-matter covered in a day’s tweets shows how wide the subject of e-discovery goes. My InBox for last week included connections with the US, Australia, Canada, Singapore, Hong Kong and New Zealand, so the range goes horizontally as well as vertically. My awareness that we are missing half (and an important half) of our audience comes from contact with UK lawyers. If the technology providers are to make the transition which Richard Susskind foresees, we need to bring the users into the circle. The use of social media is one way to do it.