If I did not write up each of the conferences and events of the closing months of 2016 as they happened, that is only partly because the end of each one seemed merely to herald the preparations for the next. Aggregating them in a single post, as I do here, has two virtues – it saves your time and mine, and it helps to point up the diversity of the subject matter which now falls under the broad heading of eDiscovery.
“Stories of Data” with Nuix
The last event which I wrote up in full was the Nuix User Exchange in California in September. My post Panama Papers and Data Protection at the Nuix User Exchange is here. There are two follow-up points, one of which is that the Nuix User Exchange 2017 runs from 17 to 20 September 2017, again at Huntington Beach. There is an early bird rate applying until 20 January and you can register here.
The other is the result of the “Stories of Data” competition which Nuix announced at the User Exchange. One of the Nuix themes is that data tells stories, and the competition was to encourage people to tell their stories about using data in an investigation. I was asked to pick the winner and my commentary is here.
GDPR and Brexit with someone who actually has to deal with it
Next was the CGOC (Compliance, Governance and Oversight Council) event in London at which I took part in a GDPR / Brexit panel with Kate Brimsted of Reed Smith and Ed Walker of DT Group. There is any amount of theoretical material out there about the General Data Protection Regulation, but it is far more interesting to hear from someone who is actually confronting the implications. Ed Walker did just that in his usual entertaining style, and my carefully-prepared notes were discarded as we got stuck into what people should actually be doing now, what difficulties they will face, and how best to surmount or get round them.
Moderating a predictive coding panel for ACEDS in London
Then it was back to eDiscovery in UK litigation with the launch of the ACEDS International Chapter. ACEDS is the Association of Certified eDiscovery Specialists and you can read about its international initiative in my post here written in advance of the event. This event, sponsored by FRONTEO, and held at the top of the Gherkin, was better attended than almost anything I went to in London in 2016. I moderated a panel comprising Ed Spencer of Taylor Wessing and Dan Wyatt of RPC, the chief protagonists in the predictive coding arguments in the Pyrrho case.
One might assume from the terms of the judgment approving the agreement that their discussions had been sweetness and light throughout. We heard that this was far from the case and that there was much to argue about as each firm stood up for its client’s interests. The main message is that cooperation is not merely something required by the rules but an essential component of discussions where sticking to entrenched positions merely adds cost without benefit.
Those of us doing the speaking had a benefit denied to the audience – the room looked westwards, and we were able to see a magnificent sunset as we talked.
Moderating a predictive coding panel for kCura at Relativity Fest
Ed Spencer, Dan Wyatt and I met up again a few days later in Chicago at Relativity Fest. Earlier in the year, at kCura’s London Spring launch, kCura CEO Andrew Sieja had referred to three cases which showed the advance of the approved use of analytics in civil litigation – Da Silva Moore from the US, Irish Bank Resolution v Quinn from Ireland, and Pyrrho from England and Wales. As he spoke, it occurred to me that I knew people involved in each of those cases, and I invited kCura to bring them together for a panel exploring the differences in the similarities between these three jurisdictions. Dan Wyatt, Ed Spencer and I were joined by US Magistrate Judge Andrew Peck and by Karyn Harty of McCann FitzGerald in Dublin, the proponent of predictive coding in the Irish Bank Resolution case.
I moderated, and this team of eloquent experts drew out the main lessons from each jurisdiction. We asked each of them to give us a short summary as the panel ended and you will find these here:
There are also video interviews with Judge Peck, Karyn Harty, Ed Spencer and Dan Wyatt which summarise the ground covered in our panel. If I were to pick one, it would be Ed Spencer’s explanation of how he gained approval internally for the use of predictive coding in Pyrrho.
GDPR and Brexit at Relativity Fest
While at Relativity Fest, I also took part in a panel about the pending EU General Data Protection Regulation and Brexit, along with Meribeth Banaschik of Noerr LLP’s Duesseldorf, Germany office; Patrick Burke of Seyfarth Shaw; and Edward McAndrew of Ballard Spahr; David Horrigan of kCura moderated in his usual affable style.
I am relieved of having to write about it because kCura’s Sam Bock has already done that on the kCura blog. Her article eDiscovery in the Brexit era: what happens now? begins with a quotation from me about waking up to “
Next year’s Relativity Fest runs from 22-25 October in Chicago. My photographs from this year are here. If you need any extra incentive to be in Chicago, have a look at my photographs of its architecture, taken from a boat trip kindly organised by Millnet.
More predictive coding – moderating a panel at Lawtech Europe Congress in Brussels
The next stop was in Brussels for the INsig2 Lawtech Europe Congress 2016. This annual event has gained in stature with each iteration since its beginnings in Prague. I have taken part in all of them and really appreciate this eDiscovery foothold in mainland Europe.
Two of the survivors from the Chicago session, Ed Spencer of Taylor Wessing and Karyn Harty of McCann FitzGerald, joined me for another predictive coding panel. We were joined by former Senior Master Steven Whitaker, Vince Neicho from Allen & Overy and Kathleen Kristiansen from Millnet. The themes were, again, cooperation and competence – knowing the rules, understanding the technology, and putting yourself in a position to articulate a course which is both practical and proportionate. I am very lucky in my panels.
My own session apart, the most interesting session was a talk by Adi Elliott of Epiq, whose subject was Technology, Data, And Regulation at a Crossroad: Key Trends in Our Industry. His survey began in the days (not really that long ago) when correspondence involved shorthand dictation and a post-box, and took us briskly through to today’s instant communication via multiple devices and locations. Discovery and privacy, law-making and regulation all struggle to keep up; Adi took us through the corporate and industry trends.
Next year LTEC17 will be near London on 6-7 November. My photographs of the event are here.
Heavyweight litigators at CLAN
I did two London events at the request of QuisLex, both different from my usual events and both interesting. One was an event organised by CLAN (the Commercial Litigation Association) with Mark Surguy of Weightmans and Beverley Barton of Practical Law. This was an audience of serious civil litigators, many of them senior ones, for whom disclosure was just a part, albeit a very significant one, of their generally heavyweight litigation. This makes an interesting change – most of the events I go to have audiences for whom discovery is the thing which matters, without regard, sometimes, to the wider litigation context, and the wider business context, in which it sits.
Clients taking control at the Lawyer Managing Risk in Litigation conference
This focus on wider issues was even more apparent in the other event which I did with QuisLex, The Lawyer’s Managing Risk in Litigation conference in London. I have covered this already in this article, but it is worth emphasising that most of the participants were senior in-house lawyers in corporations and other organisations. These people are no longer just the clients and paymasters but are increasingly and actively involved in directing the course of litigation and investigation; in many cases they are taking large parts of the function in-house or directly instructing providers. Forget, for a moment, telling the clients what you can do for them; first go and ask them what they want from you.
Microsoft Dublin, predictive coding, Peruvian Guano and Brexit in Dublin
The last event of the year was in Dublin. I took part in eDiscovery 2016, run again by La Touche Training. The lead guest speaker was US Magistrate Judge Elizabeth Laporte who was, as always, interesting and to the point. Judge Laporte took us through the implications of the appeal against the Microsoft Dublin decision, well worth reading, she said, by anyone interested in the scope and extent of US rights to collect data in another country. In this particular case the identity (and therefore the nationality) of the data owner was not known, which made it even harder than usual for the US authorities to demand it. Congress needs to update the Stored Communications Act to make it clear that it extends to data held in another country.
Judge Laporte’s other main focus was on proportionality which has “moved front and centre” in US decision-making about eDiscovery.
I moderated three panels. First was a debate about Peruvian Guano in the only jurisdiction left in the world where that very broad test remains in place; Roddy Bourke from McCann FitzGerald and Andrew Fitzpatrick, Senior Counsel, took opposite sides in an all too brief, but entertaining and informed, discussion on the merits or otherwise this demanding and usually expensive obligation.
My second panel was called Collaboration and Technology-Assisted Review in action where again my panel comprised Ed Spencer of Taylor Wessing and Dan Wyatt of RPC. I also led the closing panel with Judge Laporte, Karyn Harty of McCann FitzGerald and Keith Smith of Arthur Cox. Among other things, we talked about the implications for Ireland of Brexit, something on which I had interviewed Karyn Harty a few weeks earlier.
Perhaps the most interesting session was Karyn Harty’s talk on Machine learning and the law: recent trends. This was not just about the technology and its uses for discovery, due diligence and other legal tasks, but swept up also transparency, ethics and the navigation of audiences which range from the unconvinced to those who think that you “just press a button”.
Summary
The diversity of subjects swept up in one short round of events shows how “eDiscovery” has become an umbrella for a wide range of concerns and skills (and there are more, such as cyber security and broader matters of information governance which were not specifically on my agenda in this period). If technology-assisted review recurred in several of them, that is because the discussion, so active a couple of years ago, has re-opened with stories of practical application in place of earlier and rather theoretical talks.
That range of subjects appears also from the many videos which we recorded, edited ad published in the last quarter of the year. They are published on this blog as they are approved, with accompanying explanations from me, and collected together here.
On a personal note…
Each of these events, even those in London, took much more time in preparation and travel than the bare platform time. We usually go away in September but could not see a slot long enough for a holiday. Instead, we tacked a couple of days on to the Brussels and Dublin events.
The links which follow are to photograph sets. In Belgium and France we went back to Bruges and toured the battlefields of Mons, the Ypres Salient and the Somme. In Ireland we went to Cashel and to Cobh. Discoveries of a different kind.
eDisclosure Information Project 