eDisclosure Information Project

The 9th Annual Information Governance and eDiscovery Summit takes place at the Marriott Hotel in Grosvenor Square, London on 13 to 15 May. I have been attending this event since its foundation – it is the biggest in the UK discovery calendar and one which always brings a good mixture of topical, practical and interesting sessions.

You can download the Agenda here for the Pre-Conference Workshops, or see the summaries of Day 1 and Day 2.  The 13 May workshops, include one on Managing cross-border eDiscovery projects led by Drew Macaulay of Consilio. There was not much appetite for this topic in the UK a couple of years ago compared with the all-consuming (and wholly understandable) concern about it in the US. That has changed, partly because of the NSA/Snowden revelations and the reaction to it in formal circles in the EU, and partly because we all have an enhanced understanding of the issues at a personal level. Drew Macaulay is good on this subject, largely as result of having been involved in many cross-border collections.

The Day One Agenda opens with a Keynote panel on regulatory enforcement and expectations. The undoubted star of last year’s regulatory panel was Allison Stanton, Director of eDiscovery, FOIA and Records at the US DOJ, and she is opening the show this year.

Information governance gets an early showing with a panel on Developing an effective and actionable programme given by Richard Kessler and Jamie Brown of UBS AG. Jamie Brown was on my cross-border panel at the recent ASU–Arkfeld event in Phoenix and will certainly fulfil the “practical” obligation implied by the title.

Craig Earnshaw of FTI Consulting leads a panel called It’s not just about email any more with Matthew Ward of Barclays Investment Bank and Paul De Gruchy of RBS. As overall volumes go up, email declines as a relative to other sources like chat rooms, instant messaging and audio. Whilst this is most critical in financial services, it applies to every discovery exercise.

The trenchant Tom Spencer, Senior Counsel, Product Litigation at GlaxoSmithKline will talk about managing risk in the context of recent enforcement activities.

The fallout from Mitchell, and the focus on early stages of litigation, are covered in a panel which I am moderating called From Inception to CMC: proportionality and finding what really matters. My panel consists of Major Baisden of IRIS Data Services, together with Vince Neicho of Allen & Overy and Matthew Davis of Hogan Lovells, who know as much as there is to know about the practical implications of eDisclosure in the post-Jackson, post-Mitchell era.

The Day 2 Agenda opens with Professor Richard Susskind whose keynote talk is called Looking Back, Looking Forward: how technology has completely redefined in-house legal process. Redefining it is one thing; having it accepted and rolled out in practice is usually something which follows a few years after Susskind has predicted it, at least for those who are still around the benefit.

I am moderating the judicial panel which, as always when I get the chance to influence programs, talks about Best Practices in other jurisdictions. As so often, I am extremely fortunate in my panel members – Chief US Magistrate Judge Elizabeth Laporte of the US District Court, Northern District of California, the Honourable Mr Justice Frank Clark of the Supreme Court of Ireland and former Senior Master Steven Whitaker will cover judicial expectations which transcend jurisdictional differences.

We have Bob Lewis of Barclays and Wayne Micklethwaite of Vodafone talking under the title Making discovery a repeatable business process – Groundhog Day is fine in movies, but it is an expensive way to meet urgent eDiscovery demands. Drew Macaulay of Consilio talks about effective cost control in litigation and regulatory investigations whilst barrister Damian Murphy of Indicium Chambers emphasises the litigation value of eDisclosure.

Tom Spencer closes the show with a session called Managing eDiscovery Costs: The Jackson Reforms and their implications for corporations. His session last year generated much reaction from the floor, much of it from lawyers unused to hearing inside counsel publicly setting expectations in this context.

This is as good a mix of subjects and speakers as one could hope for. Those who attend will get more than the views of panels and speakers: you can expect a decent gathering of people whose problems are the same as yours, together with a large array of providers – this is a good opportunity to see many solutions in one room.

FTI Consulting is running a three-part series of panel discussions on managing multinational discovery matters effectively. Separate webinars will cover data privacy laws, cultural and language difficulties faced by legal teams aiming to run cost-effective and defensible eDiscovery for litigation and investigations overseas. One webinar covers Latin America, another Europe, and the third Asia-Pacific. Registration for any or all of them can be found here.

I am taking part in the Europe one, together with Craig Earnshaw of FTI in London and Denise Backhouse of Littler. I cannot remember how many years it is since I first did a cross-border panel with Denise Backhouse; she has been doing this kind of work for a long time and brings a calm and practical approach to a problem which many find alarming. It has many facets – of law, of technology and of practical management. Craig Earnshaw has years of experience of doing collections across borders; he will moderate what we hope will be a discussion between us rather than a series of lectures.

Two FTI articles have been published recently which cover the same ground in different parts of the world. One is by Craig Earnshaw and is called Issues In Global Discovery In The Wake Of Heightened Privacy Concerns.

Data protection laws were, Craig says, increasing in both number and severity around the world even before Snowden and the NSA brought the issues, as he puts it “from the boardroom table to the dinner table”. He also raises a point which cannot be over-emphasised – if the starting point is understanding what problem you face, the second stage is to tell the court or regulators early as possible:

“Inform the judge and the other side (if it’s litigation) or the regulator or government agency you’re responding to that there are international aspects to your work. If you’ve got to deal with French blocking statutes and European data privacy legislation, you’re much more likely to receive a better response from a U.S. judge if you raise the fact on day one rather than on day minus one of your discovery deadline.”

The other article is by Richard Kershaw of FTI in Hong Kong and Michael Vella from the Shanghai office of Jones Day; it is called Lawyers Beware of China’s Thorny Privacy Laws,  and covers the ground implied by its title – those who think that the EU poses difficulties for US data collections may take comfort from discovering that it can be very much harder in China.

Both articles are concise and authoritative and well worth reading.

I am taking part in a lunchtime discussion forum hosted by Huron Legal on Wednesday, 7 May at the Law Society with the title eDisclosure Costs: Risks and Opportunities for Litigation Lawyers.

It was my suggestion to include includes the words “opportunities” as well as “risks” in the forum’s title. There are opportunities to win cases, and not merely by “Mitchelling” your opponent”, with an approach which is backed by using the rules, and the knowledge derived from disclosure, to be on top of the evidence, the strategy and the tactics. There is also an opportunity to win new clients by demonstrating that you understand cost control, and not merely because it is now required by the rules.

I had the opportunity to choose my co-panellists, and immediately asked to be joined by Ronke Ekwensi, recently appointed managing director of Huron Legal in the US and former VP of electronic discovery at Pfizer. We also have Mark Surguy of Eversheds and Adam Brown of Jones Day to bring us the benefit of their practical experience. We aim to make this as much a discussion as a lecture.

You can register for this session from this page.

Xerox has acquired eDiscovery service provider Smart Data to extend the reach of the Xerox Litigation Services eDiscovery software and managed services.

As with Xerox’s acquisition of Lateral Data two years ago, the move comes in response to client demand. That acquisition brought Lateral Data’s Viewpoint into the Xerox Litigation Services stable to complement Xerox’s cloud-based review platform OmniX and its technology assisted review tool CategoriX. Xerox found that its clients – law firms, corporations and service providers – wanted the option of bringing Xerox technology and services to cases which, for whatever reason, were not appropriate for external hosting – reasons may include scale, cost, security, and the availability of in-house staff.

The result of that acquisition is that Xerox clients can choose between managing eDiscovery in-house, or having Xerox host and manage it, or a hybrid approach which uses Xerox technology resources and the customer’s own lawyers and support staff. One of the many attractions of this is the ability to move a case from one set-up to another as cases develop and as resources change. The end-to-end software and services are described here.

The acquisition of Smart Data reflects the success of this approach. Smart Data has long been in partnership with Lateral Data and has a good client list of its own. As the Xerox announcement says, the acquisition brings Smart Data’s experienced leadership team and professionals while also expanding Xerox’s managed review and collection capabilities.

Amongst the many benefits of this range of tools is that clients can pay a fixed price for an annual licence for unlimited concurrent users of Viewpoint. This brings more than certainty of cost – it means that clients can put any case, of whatever size, into Viewpoint without incurring additional costs. The analytic tools and other functions are all developed by Xerox and no extra cost is incurred by the decision to use them. If this is attractive to corporations, it is even more so to law firms and service providers running multiple matters for multiple clients.

Although much of the attraction of the combined offering is that clients can manage every aspect of eDiscovery – collection, processing, early case assessment, analytics, assisted review, review and production – in one solution, users are not committed to the full end-to-end package – they can choose to use Xerox / Lateral Data for collection and processing and review in some other application for which they may have licences; alternatively, data which has been processed elsewhere can be reviewed in Omnix or Viewpoint.

Lateral Data prides itself on making the complex simple, that is, providing sophisticated tools in a way which is easily understood. Lateral Data’s Charles Lavallée gave me a demonstration last week which bore out this claim. I repeat a point which I make often – these demos can be given over the web without anyone having to travel. At a time when lawyers ought, at the least, to know what tools are available and what they do, the investment of time in a web demo is trivially easy.

Recommind continues to build a team of people able to write interesting and useful articles which go beyond the promotion of its products.

The latest recruit is Hal Marcus whom I met in San Francisco recently. His article Pictures have a superiority complex (eDiscovery and simplicity – part two) looks at the value of visual presentations of data as opposed to its presentation in the rows and columns of an Excel-style table format

The advantage, he says, is perspective – “you’re above the data, not buried in it, and can delve in and step back as desired” The ability of the visualisation to draw attention to peaks and gaps is an easy win for visualisation and something which can be easily missed in mere lists.

eDiscovery / eDisclosure software has marched in step with the growth of data. From data we seek information and knowledge, and from information we want insight. We want it fast, in order to inform strategic and tactical decisions about the case or the investigation.

That decision-making is increasingly supported by analytical software tools which make it easier to identify the elements of the decision-making. The detailed and nuanced conclusions of the lawyers are better focussed if good analytic tools and visualisations serve up the key factors in easily-assimilated form.

Epiq Systems has long been good at delivering data in a form which makes it useful and at speeding up and minimising the task of dealing with it – it was an early adopter, for example, of Equivio’s email threading, near-duplicate detection and predictive coding, making those tools available to the lawyers as part of the processing and review.

Epiq Analytics takes this a stage further, bringing conceptual search, interactive report generation, data visualisation and analytic tools to those who need to make those early strategic decisions which inform internal discussions and negotiations with opponents of the court.

Epiq has now released Verison 1.2 of Epiq Analytics. There is a page about it here.

Paul Starrett, who presently leads UBIC North America’s Global Legal Risk Management Groups, has been given the additional title of Corporate Officer.

Masahiro Morimoto, Chairman and Chief Executive Officer UBIC, Inc. said “As an attorney with significant experience in forensic investigation and e-discovery, Paul’s demonstrated leadership ability and keen business insight has contributed substantially to the company’s growth in North America and the rest of the world”.

There is a press release here.

These are interesting times for UBIC. A new report (for subscribers only) by David Horrigan of 451 Research carried the headline UBIC takes short-term pain for long-term gain in shift from e-discovery to data analysis and begins with “As law firms and corporate legal departments ponder the effects of emerging technologies, UBIC has taken the plunge, experiencing a dip in revenue as it trades some lucrative attorney review work for the future promise of data analysis.”

The reference is to the fact that over the last few months, UBIC has redefined itself with the description Behavior Informatics. That does not mean it is turning its back on eDiscovery – far from it. The most recent product to emerge was Email Auditor (I wrote about it here) which has both a compliance and an eDiscovery role and which is a good example of the crossover between behaviour analytics and eDiscovery.

At one level, the words “data migration” have a simple meaning – the moving of data from one place to another. This may be something straightforward like retiring a server and moving its contents to another. The data might be moved to the cloud. Mobile workers will want (we hope) to transfer data which they have collected or created on remote devices. At a more complex level, a merger or acquisition generates the need to move hold data collections from one company’s resources to another.

Involvement in an eDiscovery process, whether for litigation or to meet the demands of a regulator, adds the requirement that the data thus moved retains its integrity both as to completeness and as to its content, history and metadata.

Although NightOwl Discovery emphasises (not least by its name), that its specialist skill for 20 years or so lies in the discovery process, a high proportion of its work involves data migration for one reason or another. Many of its clients are companies who call upon NightOwl for a one-off (or a series of one-off) transactions. Many of them, however, rely on it for longer-term strategic business planning in respect of its documents and data.

NightOwl Discovery has produced a useful paper called The Evolution of Data Migration: from eDiscovery challenge to a comprehensive business process. Its purpose is implied by its title – why does one need to migrate data, what challenges arise and what processes, skills and technology are required to achieve a migration which serves the business in its day-to-day work whilst remaining compliant with regulatory requirements and ready for the next eDiscovery challenge?

You can download the paper from here. Whilst there, have a look at NightOwl’s new website which which is both functional and attractive, outlining the full range of services and (a point I always think important) introducing the key people who will be responsible for managing client relations and client projects.

We see an interesting range of technology approaches to eDiscovery in two recent articles by or about Eddie Sheehy, Global CEO of Nuix. Meanwhile, another Nuix article looks at the benefits for lawyers in acquiring eDiscovery skills.

His article I give up: TIFFs, you win, represents what Eddie Sheehy clearly sees as a step backwards: despite his conviction that converting documents into TIFF files is a waste of time and money, he recognises that many of Nuix’s customers still want to be able to convert native files into tiffs.

This is an interesting inversion of the norm – most software companies rush to add the latest technology to their products, whether or not their clients actually want it, as part of the inducement to buy. This is the first time, I think, that I have seen a world-class software company taking a step which it believes to be a retrograde one because that’s what its clients want. That, perhaps, is one of the reasons why Nuix is so successful – leading with technology is second nature to it but providing what the clients actually want comes first.

For the most eloquent arguments against TIFF-ing, you need to see what Craig Ball has to say – go to his blog here and enter TIFF in the search box.

The second article featuring Eddie Sheehy appeared in the Australian Lawyers Weekly with the title cloud opens up clear technology path. In it, Eddie Sheehy identifies the cloud as the best place to carry out eDiscovery and related functions. As he says, many lawyers are concerned about how to get large volumes of data onto the cloud and how to search and access it once it is there. This is one of the Nuix is particular skills, so it is perhaps not surprising to find Eddie predicting it.

If these two stories have a common element, it is to do with the need for lawyers to understand what technology exists, what it can do, and what it can save. This involves a set of skills without which the 21st-century disputes lawyer is operating with one hand behind his or her back. The corollary to that is that the acquisition of these skills is a career-proofing step, and one which opens doors beyond eDiscovery.

This is the theme of an article by Angela Bunting of Nuix called Your eDiscovery skills have many applications. As she puts it “the skills we have employed for years in eDiscovery, with a few twists, and are the latest trend in a proactive information management… Those skills have value around the organisation”.

kCura is holding a Relativity Spring Launch event in London on 8 May. As last year kCura will invite a wide audience of hosting partners, law firms, corporate and government representatives. This year’s event will include a keynote presentation from CEO Andrew Sieja highlighting the new features of Relativity 8.2.

One of the best features from last year was workstations scattered throughout the venue at which people could be guided through different Relativity features such as Relativity legal hold, processing, analytics, binders and review. Each breakout station will be manned by a relativity subject matter experts in a position to answer questions.

The registration form for the event is here.

Everything about a major eDiscovery / eDisclosure exercise has to be done quickly, but nothing causes as much stress and difficulty as an unexpected need to change eDiscovery providers.

Huron Legal managing director Ronke Ekwensi was formerly vice president for eDiscovery at a major corporation. She has written a paper called Planning for the unexpected: changing eDiscovery providers on short notice which describes the lessons which she learnt in managing providers and in moving into a new one.

The paper can be downloaded from here.

I am, as always, looking forward to attending Guidance Software’s big (and ever bigger) annual event, CEIC. CEIC 2014 takes place in Las Vegas between May 19 and 22. Keynote speaker Joel Brenner, former National counter-intelligence executive and author of America the Vulnerable is an expert on cybersecurity and privacy, and in a position to provide insight and practical strategies for businesses.

As always, the CEIC programme consists of a mixture of hands-on technical learning and sessions devoted to the security and eDiscovery context in which those skills are used. I am, as usual, taking part in a session on cross-border discovery and will take the opportunities which CEIC always gives to meet up with a wide range of people from every corner of the a discovery world.

Registration for CEIC is here.

The first step in dealing with discoverable social media – from Facebook, Twitter and LinkedIn – amongst others – is to remember to think about it at all. Many lawyers who have long grasped the point about collecting email, word documents and spreadsheets, overlook that an ever-increasing amount of communication takes place in what one might call non-traditional media forms.

No one is suggesting that it must all be collected, but it must be considered. It can involve new implications, not least the fact that the data and its vehicle – iPads and smartphones for example – may not be the direct control of the party required to give discovery public disclosure.

Decisions about what to collect, and how much of it to collect, must include some understanding of what is involved in doing so and in reviewing it in due course. FTI Technology is good at this and has come up with a video which explains how social media data can be collected, processed and loaded into Ringtail.

Epiq Systems have an on-demand webcast with the title Information governance and security update: new realities for 2014. Its purpose is to address those things which legal and corporate information teams should be dealing with proactively at an enterprise level, not because of an active eDiscovery requirement, but because of what might happen and (which is easily overlooked) because there is value in the data which is hidden behind poorly managed volumes.

The webinar identifies the data priorities for 2014 as:

• Regulatory data: Regulatory matters are projected to be the No. 1 legal service demanded in 2014
• Litigation data: Data is growing by 50 percent each year, making it harder to meet eDiscovery demands
• Corporate data: Custodian movements and “keep-everything” tactics create roadblocks to good information governance

The speakers on the webcast are David Rohde, Esq. Senior Director, Consulting Services at Epiq Systems and Scott Giordano, Esq., Corporate Technology Counsel at Exterro. They will outline best practices for tackling information governance challenges for 2014.

You can access  the webcast here.

Whilst on the subject of Epiq Systems and information governance, here is a link to a paper called To govern is to tame which David Rohde produced last year in conjunction with ILTA. It is a useful summary of some of the same topics as are covered in the webinar.

AccessData’s user conference, ADUC 2014, takes place in Las Vegas from May 14 to May 16.

Howard Schmidt, former cyber adviser to Presidents Barack Obama and George W Bush, is to be the keynote speaker, reflecting the growing significance of cyber security as a concern of corporations.

There is plenty else going on at ADUC 2014, including a full programme of sessions both about the use of AccessData technology and about the context in which it is used. The ADUC 2014 website is here.

The draft amendments to the Federal Rules of Civil Procedure attracted over 2000 comments leading, as one would hope, to some amendments.

Two rules in particular have been heavily modified – Rule 37(e) relating to sanctions for failure to preserve discoverable information and Rule 26(b)(1) relating to the scope of discovery. The drafting of both of these amendments could have a serious effect on the practice of rediscovery and its consequent costs.

Tom Allman, Adjunct Professor at the University of Cincinnati College of Law, and Mary Mack, Enterprise Technology Counsel at ZyLAB, discussed the latest amendments in a recent webinar. That webinar has now been made available for download at your convenience. The registration page for access to the recording is here.

kCura is conducting a series of interviews and webinars about the use of Relativity. I took part in one recently with Constantine Pappas and will link to it when it is available.

Meanwhile, Constantine Pappas has interviewed Paul Laven of Merrill Corporation on his experience as a user of Relativity Analytics and on how he combines the use of analytics with more traditional review tools. You can find interview here.

One of the strengths of iCONECT’s XERA platform is its ability to handle a range of languages, both for search and processing and for the user interface.

iCONECT has now released a Japanese version of XERA, part of a growing range of languages which the software can accommodate.

There is a press release with further information about the Japanese interface here. You may also find it helpful to see this video on Xera’s interface and navigation.

The years since the the Zubulake Opinions and the eDiscovery amendments to the Federal Rules of Civil Procedure have resulted in the evolution of well-established best practices. eDiscovery obligations, however, continue to trip up corporations and their lawyers, and continuing case developments, as well as technology developments, change the considerations all the time.

A White Paper by Guidance Software identifies seven best practice considerations which will help establish the complete eDiscovery process for the preservation of electronically stored information for litigation and investigation

You can download the paper here.

Cicayda continues to promote itself, its software and its thinking in the way it began, with a continual flow of news and commentary.

It is the informed commentary which will bring in the prospective clients – few will seek out a product description or a price list (and Cicayda is one of the few providers who actually publish a price list) for its own sake, but prospective users can be drawn in by commentary which has a bearing on their work.
Cicayda’s VP of Knowledge Strategy, Marc Jenkins, has continued his series of articles with one called Lawyers’ Weapons.

The “weapons” in question are words and Marc Jenkins addresses an issue which is central to persuading lawyers that their intelligence and skills are supplemented, rather than threatened, by technology. He gives examples of cases which were won because a lawyer’s eyes fell on words in documents which provided the facts needed to turn the case. The problem now is that there are too many documents and that it is too expensive to get suitably qualified lawyers to read them all. What the technology does, provided that it is the right technology and is properly used, is to search through the document populations in order to discriminate between documents which are likely to be relevant and those which are less likely to be relevant.

This is very different from the idea that the technology is identifying the documents, still less that it is making the decisions about them. That still depends on the observation and the analytical intelligence of appropriately-qualified human beings. They are, Marc Jenkins says, supported and enabled by the technology, not supplanted by it.

Cicayda is also growing its network of partners, with the announcement last week of a partnership with Cumulus Data.

Lastly on Cicayda (for the moment) is the news that their second conference, RelEvant 2.0, is to take place in Nashville on 13-14 October 2014. I attended the first one and wrote about it here. If you want a different kind of conference, this is one to consider.

I am just back from the San Francisco instance of the Today’s General Counsel eDiscovery series. Next up is the London version, which takes place at the Brewery in Chiswell Street on 8 to 9 April.

I am one of the conference chairs; Kathy Owen, Senior Counsel at DLA Piper, and David Kessler, partner at Norton Rose Fulbright are the others. We are supported by moderators who are barristers, solicitors, eDisclosure experts or (crucially) people responsible for eDisclosure and information governance within corporations.

The information and registration page is here. Registration is free for people in companies and law firms with appropriate responsibilities – ask Jennifer McGovern for the password for free registration.

The format of these events is very different from conventional conferences. There are no PowerPoints, and the audience is not strictly an audience at all – the idea is that everybody is encouraged to take part if they choose to. The room is arranged to encourage discussion rather than lecture, and we open by asking everyone present to say what their interest is and what they hope to get out of the day.

These are interesting times for electronic disclosure in the UK. Those parts of the 2013 rule amendments specifically aimed at disclosure are only part of the story. The fall-out from the Mitchell decision is that failure to comply in any form – including failure to meet deadlines – can bring serious penalties, including the exclusion of the relevant evidence. That tends to happen to the unprepared, so it becomes important to be ready.

It is hard to keep up – judgments of varying effects are coming thick and fast but tell only part of the story; mere avoidance of sanctions is a low target – winning clients, winning cases and keeping costs within proportionate bounds are acheivable aims.

What is actually happening out there, and how are people dealing with it? This type of discussion forum is designed to encourage the sharing of information like this, and I commend this event without reservation.

The word “workflow” tends to alarm lawyers for whom “workflow” connotes a level of technology understanding for which they were not trained.

In reality, well-designed workflows achieve the opposite effect – they remove the need for the decision-making lawyers to dirty their hands with the technology planning because a well-designed workflow will carry the eDiscovery / eDisclosure operation from one step to the next, leaving the lawyers to concentrate on the decision-making and analysis for which they were trained.

A good workflow needs to bring consistency whilst allowing for flexibility to adapt to different jobs and client needs. Nuix has a webinar on 2 April which is relevant both of those who design workflows and to those who will be the users.

The speakers are Simon Bayangos, Director of Technical Services at Nuix, and Jason Christian, Sales and Systems engineer at Nuix. There is more information and a registration form here.

Equivio is extending its commitment to objective user education with the seventh in its highly regarded webinar series Predictive Coding Minus the Hype.

This one is called The Essential Guide to Managing a Predictive Coding Project. As with the previous webinars in the series, the emphasis is on practical knowledge; the subjects to be covered include advice on how to:

1. Prepare a proper protocol for a predictive coding project
2. Set up the relevant issues (super-issues and individual issues)
3. Conduct control sampling, seeding, active learning and training
4. Ensure quality of training
5. Maximize recall and precision
6. Decide on relevance-based culling (user or system defined)
7. Verify results

The webinar will be presented by Rachi Messing and moderated by Avi Elkoni who between them have experience of working on hundreds of predictive coding projects.

There is further information and a registration form here.

With the consultation period closed, we wait with interest to see what changes will actually be made to the Federal Rules of Civil Procedure.

In a webinar to be given today, Tuesday, March 25 at 1-2pm EST, Mary Mack, Enterprise Technology Counsel at ZyLAB and Thomas Y. Allman,  Adjunct Professor at the University of Cincinnati College of Law will discuss the most likely changes and the effect they will have on eDiscovery practice.

The webinar is sponsored by ZyLAB and produced by ACEDS. Further information can be found here together with registration details.

A narrow view of eDiscovery eDisclosure is that it is a reactive task prompted by litigation, by a regulatory investigation, or by the need to conduct an internal inquiry into suspected misconduct.

A workshop to be given by HP Autonomy in London on 15 April will set out to show that a focus on these retrospective tasks overlooks both the potential requirements for eDisclosure and the ability to make multiple uses of eDisclosure skills and tools. Obligations of transparency, of compliance with regulatory, HR or other legal duties and the obligations owed to shareholders, lenders and others all require the ability to find information for daily business purposes as well as to be able to record, manage, and interrogate data in multiple formats, languages, and sizes for discovery / disclosure.

HP Autonomy is the latest of the sponsors of the eDisclosure Information Project, and I am speaking at this event. There is a description of the workshop here which includes a registration link.

The Third Annual ASU-Arkfeld eDiscovery and Digital Evidence Conference takes place from 12-14 March at the Sandra Day O’Connor College of Law, Arizona State University, Tempe, Arizona. The website, with programme and speaker list is here.

Speakers include US District Judge Shira Scheindlin and US Magistrate Judges John Facciola and Craig Shaffer as well as a list of well-known speakers from companies, law firms and litigation support providers. The program covers all the topics of the moment – data analytics, the proposed new Federal Rules of Civil Procedure, information management, cloud computing and the rest.

I am moderating a panel called Developments in Cross-Border eDiscovery – exploring the intersection of privacy, data sharing and compelled disclosure along with Jeff Nagel of Gibbons, Jamie Brown of UBS Warburg and Jerami Kemnitz of Shook Hardy & Bacon. It is a privilege to be asked to join such distinguished (and otherwise all-US) company and I am looking forward to it.

This time last year I quoted with approval an article by Gibbons on the then new Sedona International Principles. My article, called Cross-border Discovery – Federal Judge makes a monkey of the cheese-eaters, was a tirade against US courts who seemed to equate “American interests” with “the interests of the American party to the litigation” and who seemed to think that the laws of other countries were of no consequence. To show that mine was not entirely a UK-EU response, I referred to a Gibbons article which included the following:

And for the last twenty-five years, courts generally have not heeded that advice, giving short-shrift to the idea that foreign privacy or data protection laws must be enforced if the result is to limit discovery of relevant information. At the urging of lawyers and several influential organizations, that could finally be changing.

…and…

Balancing such competing interests, however, is critical to fostering a global economy, avoiding unnecessary international tension, and maintaining reasonable limits on the gathering and production of ESI. Now, 25 years after Aérospatiale, courts may be ready to listen.

The author of that article was Gibbons’ Jeff Nagel and it will be a particular pleasure to sit on a panel with him all this time later on the same subject.

An article called Can structured and unstructured data marry? by Eddie Sheehy, Global CEO of Nuix, makes an interesting point about the differences between structured and unstructured data at a level which goes beyond obvious physical differences.

Structured data – the stuff in rows and columns in databases – is used largely to show what happened. It can be manipulated, indexed and analysed to record past events and, perhaps, to use that data to predict what might happen in the future.

Unstructured data, which may include Word and other text files of all kinds, can be used to identify the reasons why something happened and the thinking and opinions of those who created it or who were involved at the time. Eddie Sheehy gives a specific example of doctors’ notes supporting the are are raw data about treatment.

Another area where this conjunction of structured and unstructured data occurs, Eddie Sheehy says, is in information security, where relevant material takes many forms, not all of which are predictable

The possibilities – embracing both risks and opportunities – are endless and take us well beyond the (complex enough) task of identifying historic data for eDiscovery purposes. It is also, frankly, much more interesting.

Last October, I took part in a panel at kCura’s Relativity Fest (picture below right) whose subject was the use of technology-assisted review for litigation and regulatory investigations.

My co-panellists were a mixture of experts in statistics and lawyers whose daily work involved the use of technology assisted review. I elected to talk about the requirements of the rules (both the US rules and those of England and Wales) which require parties to be proportionate in all that they do.

Proportionality is the balance between cost, risk and benefit, and I drew attention to Judge Peck’s emphasis on proportionality in his Da Silva Moore opinion; that was primarily about predictive coding, but Judge Peck’s observations on proportionality and cooperation were no less important than what he said about predictive coding.

This subject deserves expansion, and kCura has organised a webinar at which kCura’s Constantine Pappas (who moderated the Chicago panel – picture left) and I will discuss proportionality in the context of technology assisted review.

This webinar has now taken place. I will provide a link to the recorded version when it is published. This post was moved from https://chrisdale.wordpress.com

iCONECT has announced a series of four new webinars highlighting the benefits of IVIEW, the custom visualisation engine which is built into iCONECT’s XERA review platform.

The webinars are aimed at project managers, lawyers and plaintiff firms and are described by iCONECT as follows:

XERA Release Highlights – iVIEW Overview – Monday, March 17th at 12:00noon EST

From pie charts to show coding designations to bar graphs showing privileged and responsive document percentages and user metrics, the new iVIEW module helps you get to the data quicker.

iVIEW for Project Managers – Monday, March 17th at 2:00pm EST

Answer the questions from your team, client and lead attorneys quickly…with XERA’s new iVIEW data visualization.

iVIEW for Attorneys – Tuesday, March 18th at 12:00noon EST

XERA’s interface works the way attorneys think, and delivers on that promise with visualization tools that quickly and easily digest and report data and trends, ideal for building your story.

iVIEW for Plaintiff Firms – Tuesday, March 18th at 2:00pm EST

With built-in “document compare,” and the ability to visually see trends in data using its new iVIEW data visualization, XERA delivers the tools you need for your next case.

iCONECT’s Ian Campbell is taking part in a panel at the Second Annual Electronic Discovery for the Small and Medium Case run by the University of Florida. The panel is called “Build the story: find more like this”. The conference programme focuses on letting the data until the litigation story by pulling out the data which makes up the narrative. There is a press relase about this event here.

UBIC , the eDiscovery software and services provider with specialist skill in Asian languages, continues to develop what it calls behavioural informatics technology with the launch of Email Auditor, an application which monitors email correspondence to identify questionable behaviour.

Regulatory investigations, and the fines, disruption and reputational damage which they can cause, all cause increasing concern to corporations. Software development is moving from the ability to identify documents – and the behaviour which they indicate – retrospectively on an eDiscovery exercise and towards finding them in anticipation and as they occur. Email Auditor is designed to identify and analyse very large volumes of structured and unstructured data for specific types of content and meaning. It includes an iterative learning process which amends its own rules database to identify questionable communications in real-time.

There is a press release about Email Auditor here.

The benefits of recording a webinar is that it has a shelf-life beyond its broadcast date. FTI Technology has made available a webcast from last year called Social media and eDiscovery or: how I learned to stop worrying and love digital ephemera

The thing about so-called “digital ephemera” is that much of it is less ephemeral than we think. Tweets, Facebook entries, chat threads and all sorts of things which seem of the moment can actually lay dormant for a long time and then turn up to bite us. Sometimes the adverse implications appear at once, as in the recent story of the girl who posted on Facebook about her parents successful litigation settlement. That was held to breach the confidentiality terms of the settlement and led to repayment of the settlement sum. What else is lurking in long-forgotten tweets and posts?

Someone this morning retwweeted a tweet of mine which I did not recognise. That, it transpired, was because I posted it 884 days ago. Fortunately, its contents were ones I am still happy to own. It shows, however, how long these things can sit around.

The speakers in the digital ephemera webinar are Shannon Capone Kirk, eDiscovery counsel at Ropes & Gray, David Freskos of FTI Technology and Barry Murphy. At the time of recording, Barry Murphy was with eDJ Group. He has since joined X1, a company specialising in finding exactly the kind of digital media which are the subject of this webinar.

The webinar can be downloaded any time from this page.

Recommind is giving a live webinar with Q&A on Thursday 6 March at 12:00pm EST / 9:00am PST.

Its purpose is to demonstrate the features of Recommind’s Axcelerate 5, the latest iteration of its on-demand review and analysis platform.

Those who like to condemn modern software tools as “black boxes” without even looking at them might say in their defence that they do not have time to organise and attend a demo. That excuse disappears when companies like Recommind (and Recommind is not the only one) bring their demos to your desktop.

Registration for this webinar is here.

When my headline says that Epiq Systems “focuses on Europe”, I do not, of course, imply a sole focus on Europe – with its the recent opening of its fifth New York document review centre, the launch of a Canadian document review service and its expansion in the Far East, no-one can suggest that Epiq marches on a narrow geographical front.

The reference is to just some of the news from February. The first item of these is the appointment of Richard Seabrook as Vice President and General Manager, eDiscovery Europe. The press release draws attention to the fact that Epiq expanded its document review centre space in London by 50% during 2013 and its client services and operations teams by 40%. Such growth clearly warrants a senior appointment.

The other is an article by Epiq’s Deborah Blaxell, published in the Global Legal Post with the title Responding to cross-border litigation and regulatory investigations. Although this is not a problem which is unique to Europe (Epiq knows all about it in the Asia-Pacific region as well), the thrust of the article is on the complexity which can arise when regulatory or (mainly US-led) seek broad US style discovery in Europe where privacy and data protection considerations immediately raise conflicts.

Deborah Blaxell’s article gives a good overview of the implications which can arise.

Any foreign company which wants to do business with the US must understand the implications of the US eDiscovery process. Both civil litigation and the requirements of US regulators require very full disclosure of documents and data relating to the subject matter of the dispute or investigation. For US companies, this is part of doing business and both the required transparency and the expense of providing discovery are factored into the business plan.

This poses difficulties for non-US companies, and at multiple levels. The required degree of transparency maybe unacceptable as a cultural matter; there are practical difficulties of language and, in some cases, of character set, which raise technical issues; not least, the laws of many countries prevent disclosure of certain types of information of the kind and to the extent required by the US.

All these factors are present specifically in Japan, many of whose largest companies find their biggest markets in the US.

Masahiro Morimoto, Chairman and CEO of eDiscovery software and consulting company UBIC, has written a book intended to inform Japanese corporate and legal officers about the implications of US eDiscovery. The book is called eDiscovery Japan – a pathway for US attorneys to do business with Asian corporations, emphasising that the need for information goes both ways – US lawyers need to understand the Japanese point of view as much as Japanese companies need to understand the US.

Mr Morimoto founded UBIC in 2003, providing eDiscovery services first within Japan and then in the US and in other Asia-Pacific countries such as South Korea and Taiwan. It is an extremely useful guide which can be obtained through any of the offices listed on UBIC’s website.

Huron Legal has been on a serious recruiting drive in the US, adding a number of heavyweight players to its teams advising lawyers on information governance and eDiscovery.

As I was walking round the exhibitor floor at LegalTech, I was pleased to bump into Ronke Ekwensi on the Huron booth. I knew Ronke when she was VP of eDiscovery and Records and Information Management at Pfizer, when I did a couple of panels with her. On one occasion, a US judge was taken ill just before the performance of one of my short eDiscovery plays and I needed a substitute in a hurry. You don’t choose just anyone to fill the place of a Federal judge; I thrust the script into Ronke’s hands and asked her if she would take on the role – which she did, with appropriate gravitas.

Bob Rowe, Executive Vice President of Huron Legal, said:

As the regulatory environment continues to become more complex, flawless information management is essential for law departments and law firms to effectively manage compliance and risk mitigation issues. Ronke’s background in information governance and e-discovery will greatly benefit our clients in selecting the most efficient ways to manage, store, produce and leverage information while reducing costs and mitigating risk.

This is a great appointment for Huron Legal and an exciting place for Ronke Ekwensi to be as Huron builds up its strong new team.

There is a press release about this appointment here.

To what extent is it possible for a common approach to develop for managing eDiscovery? The court rules or the demands of a regulator impose certain constraints and practices, but it is open to any company and its lawyers to develop a set of practices for the management of discovery within those constraints. If one could add together the best of these, one might start to develop a common playbook capturing the best practices of those with the most experience.

Ari Kaplan has been working with FTI to find out from corporations what they have been developing for the management of eDiscovery. The findings appear in FTI’s Fifth Annual Advice from Counsel study. Ari Kaplan and FTI’s Mike Kinnaman are giving a webcast about these conclusions on 5 March at 1.00pm ET / 10.00am PT. The webcast will cover:

• Emerging best practices for the big three data management challenges: high data volumes, the “bring your own device” (BYOD) environment, and collecting data from the cloud
• How corporations are addressing these challenges, including the processes corporations are bringing in-house or opting to outsource
• What impact, if any, information governance programs are having on e-discovery

Registration is here.

AccessData has launched InSight™ Platform which speeds up both the identification of threats and the resolution of incidents. It is a cybersecurity system which enables companies to manage the data incidents caused by cyber-attacks, mobile risk, GRC (Governance Risk & Compliance) and eDiscovery requests and get employees back to work as quickly as possible.

I was at a big dinner a while back for a group of us who first met 30 years before. Everyone was relaxed – except for one man who looked as if he had had a terrible day. He had – he was in charge of security at a large corporation and had spent 24 hours fighting a cybersecurity attack. It was a bit like knowing of a war through books and newspaper accounts and suddenly meeting someone who had just come back from the front. For a few hours (and rather more hours than the managing director appreciated) the company had been unable to function effectively as systems were brought down to deal with the attack. Ahead lay a great round of reporting and post-mortems.

No company is immune from such attacks and, however well the perimeter may be defended, the threat of attack is ever-present. Alongside protection must exist the means of reacting. Detection and reaction is what InSight Platform does.

There is a press release here which describes what InSight does. With it comes a case study whose title IDT Corporation Reduces Incident Response Times by 80% goes to the heart of the problem and the AccessData solution.

Also relevant is a study called Threat Intelligence & Incident Response: A Study of U.S. & EMEA Organizations recently undertaken jointly by the Ponemon Institute and AccessData which shows that the majority of organisations are unable to effectively respond to and resolve a cyber-attack. To prepare the report 1,083 CISOs and security technicians in the United States and EMEA were asked about how their company handles the immediate aftermath of a cyber-attack and what would help their teams more successfully detect and remediate these events. One of the more interesting findings was that many breaches are concealed from senior directors.

CY4OR is a UK-based eDisclosure and forensics company which offers eDisclosure services using software from Nuix and Symantec-Clearwell.

An article called Inside eDisclosure: Dispelling the price myth by Tom Hall on the CY4OR eDisclosure blog reminds lawyers that they are now required to prepare an estimate of costs of disclosure for exchange before the first case management conference. This, of course, is an obligation quite separate from the smaller number of cases which are subject to cost management and which require full budgets.

The duty to provide costs estimates requires the lawyers to consider in advance how they intend to deal with disclosure and (which is harder) to estimate the time and costs, possibly of alternative ways of approaching the problem.

Tom Hall refers to a practice which is common – the use of Microsoft Office as a review tool and, specifically of Outlook as a means of finding and reviewing documents.

Outlook may well be adequate as an everyday business tool for finding (for example) the emails between two people over a given period. It is far from adequate as a means of complying with the obligation in the Rules to find all documents which are supportive of or adverse to the case of the giver all any other party, for proper keyword search or for finding everything which relates to a given topic. Even once you have found those which (perhaps) fit that definition, the task of reviewing them in Outlook is a) significant and b) almost incapable of pre-estimation.

To take one example, most proper eDiscovery / disclosure platforms now include the ability to identify the single email which includes all other emails in a chain. Without that facility, every single email meeting the search criteria must be looked at separately and decisions made about them. It is not hard to see how this can both increase costs and make them incapable of calculation.

Tom Hall’s point is that the case does not have to be a big one before these costs become significant. Anyone preparing to give disclosure in a case of any size ought to be aware of the alternative ways of doing it and of the relative costs.

LegalTech 2014 did not bring a rash of new products. One of the few which caught the eye (I have others yet to see) was Recommind’s Axcelerate 5, which, after two years of work and 300 new features, justified the claim to newness. Apart from improved technology, the focus is on making it easier to use – indeed, the ambition is to that the users should find it positively pleasurable.

I will not take you through the 300 new features – the product description is here – but the main ones include a new (and very crisp) document viewer, redaction on-the-fly in near-native mode, automatic redaction of personally identifiable information and of hits from such terms, the ability to integrate Recommind’s visual analysis tool Hypergraph, and new dashboards for predictive coding and workflow automation.

Some of these expressions have little meaning to potential users when listed like this so I will focus on the three which caught my eye when I saw a demonstration:

Visual analytics, the least easy to describe, allows the user to see groups and connections in a way which is impossible with mere lists. Recommind’s Hypergraph offers the opportunity to change the focus of attention, to identify areas which look interesting, and to drill down into them.

The ability to find and redact certain classes of information – those which appear in a fixed pattern or which match search terms – is a seriously useful tool.

The dashboards make it easy to answer questions like “how much have we found” and “how much is left” and generally to help both administrators and users manage the flow.

As you would expect from a company which has emphasised its predictive coding tools, the focus is on the cost reduction which this technology can bring – Recommind gives as an example a case in which, of a starting population of over 3 million documents, only 5.1919% were reviewed, with a saving of over $1.5 million. Cynics have to take notice of savings of this order.

Recommind says of this that predictive coding has been used simply for “bucketing stuff into responsive and non-responsive documents – the stuff you have to do”. The proper use for technology assisted review they say (and I agree) is to enable the lawyers to find quickly the documents which matter – to identify the facts, adapt to changes, plan a strategy and prioritise the review.

Technology must amplify, and not replace, the lawyer’s capabilities, and we are reaching the point where it is no longer acceptable for a lawyer to turn up his or her nose at “black boxes” without at least going to look at one or two. Recommind’s attention to the user experience makes it easy to demonstrate. When you’ve done that, you can at least say that you have tried and when your client or opponent mentions it, you will know what they are talking about – and what you are missing.

Recommind has seen significant growth in 2013 – processing 75 TB and winning 100 new customers in the year. eDiscovery revenue saw 30% growth. The growth has been especially in Recommind’s on demand offering which is why the development attention has gone there.

The new clients include law firms and corporations involved in insurance, finance and health care. Three quarters of the business is in the US, but take-up is growing quickly in the UK and in Germany (where Recommind’s R&D is run from).

These statistics, and similar ones from the other important players with proper predictive coding tools built into them, give the answer to those who (after sneering about “black boxes”) like to say that they don’t know anyone who is using technology-assisted review. Well, someone is buying it; someone else is running it over your data and finding out things you missed; someone else’s users may even be enjoying their work.

The evidence lying in audio recordings is increasingly important. This is particularly so for financial institutions subject to regulatory requirements as well as for evidential obligations in civil proceedings.

This is one area where technology has advanced quickly to meet the growing need and the growing volumes of data. Epiq Systems is organising a breakfast discussion on Thursday 27 February at Eight Club, Moorgate, 1 Dysart Street, London EC2A 2BX at which you can discuss these challenges and explore practical solutions both with those who face similar challenges and with experts.

The discussion will be led by Nick Rich, Lead Solutions Adviser at Epiq Systems. If you would like to take part in this, please contact Anushka Chhagan by email to achhagan@epiqsystems.co.uk or by phone to +44 (0)20 7367 9176

UBIC is hosting a webcast on Wednesday, 19 February at 1:00 PM EST about the challenges of applying data analytics to legal discovery and to other investigations involving large volumes of changing data. There is a description of the event here.

Big data is more than merely “lots of data” – it involves size, complexity and velocity (that is, it changes frequently) and its management raises questions about cost, deadlines and training.

The speakers on the webcast are Ellen S. Pyle, Discovery Counsel at McDermott Will & Emery, Washington D.C., and Paul Starrett, Chief Global Risk Officer at UBIC North America.

They will cover a range of relevant topics including:

• How to efficiently coordinate work flows between data scientists and legal professionals.
• How enterprises can implement information governance programs that take advantage of data analytics technology.
• What the available data analytics tools are and how they are most appropriately applied.

Registration is here:

Nuix took the New York Public Library as the venue for its big LegalTech party, a place well suited to the the high intellectual content of the evening. If that makes it sound rather dry, it certainly was not. Nuix assembled as good a team as one could ask for to stimulate thought on eDiscovery and information governance, and managed to combine high intellectual content with good entertainment.

Global CEO Eddie Sheehy opened with a summary of what has been going on in the ever-widening Nuix world in which in the ability to deal quickly with very large volumes of data is a recurring theme. Nuix always manages to give the impression that it enjoys the challenges, something Eddie Sheehy summed up with his closing line – “Thanks for all the difficult things you ask us to do”.

I have to say that I am quite hard to please on these occasions, preferring to separate eating and conversation from speechifying. I quickly lose patience with podium lectures above the clink of cutlery and glasses, and generally resent the interruption of my conversation. Nuix carried it off with this event. We came away better informed and stimulated to think about issues which matter, and enjoyed it.

The centrepiece was The Great Debate with legal luminaries including US Magistrate Judge Andrew Peck, US Magistrate Judge James Francis, Jason Baron and Bennett Borden of Drinker Biddle & Reath LLP, Laura Kibbe of Epiq Systems, Conor Crowley of the Crowley Law Office and Nuix’s own Deborah Baron

They debated propositions such as:

To be competent in eDiscovery one must understand how robots think; how the technology and the underlying mathematical algorithms actually work.

and

The proposed changes to the Federal Rules of Civil Procedure are singularly important and desirable despite transformative changes to eDiscovery practice; they are more important than what robots are capable of doing now or in the near future.

The speakers argued for and against these propositions, Jason Baron ensuring that they stayed within their time-slots. Any one of these participants deserves an audience, but to have them throwing short and snappy points at us in sequence delivered good value with no flab. As my photograph below shows, there was much merriment onstage; it was infectious and made for a good-humoured evening.

CTO Stephen Stewart took us into some real-life applications of Nuix technology. Bennett Borden and Barclay Blair told us about the newly-launched Information Governance Initiative (I am writing separately about this). There was a quiz. If I had one regret, it was that the room was full of interesting people to talk to and little opportunity to do so in between the fast-flowing stuff from the platform – that, I stress, is a regret not a complaint.

The same is true of the stage lighting, which was rightly turned down to avoid glare in the speakers’ eyes. Their comfort was my (minor) inconvenience because it made it hard to get decent photographs; the results on this page and in the collection here, are a bit grainy but they do at least capture the spirit of the evening.

My own article Washington and New York to Mitchell via privacy, Singapore and Lobachevsky has a discursive account of the last couple of weeks, some pictures of Washington and some fulminations about Mitchell, Grayling and the Ministry of Justice. It talks also about privacy, Singapore and plagiarism.

My Washington photographs can be found here. This one sums up the task of catching up after LegalTech:

The news column opposite is catching up with other things. We are working on the videos which we recorded at LegalTech and on various posts based on what went on at the show.

Every conference organiser seems to want input into forthcoming events.

There is plenty going on.

It is fitting, I suppose, that the CEO of a company committed to data reduction should manage to describe his company’s extensive plans in very few words. That is what we got from Equivio’s CEO Amir Milo as he welcomed us to Equivio’s dinner at the beginning of LegalTech in New York.

You may recall that Amir Milo turned up in a 2013 “List of people who make a difference in eDiscovery” with this description:

the C.E.O. with possibility the widest “lateral” industry vision. He’s the C-level person most likely to be found at analytics events not populated by the usual suspects, making Equivio a fun company to watch.

“Lateral vision” implies more than just producing first-rate technology – you need to keep thinking of who is going to use it, how they will use it and for what objective. Amir opened his short but packed talk with Equivio’s motto for 2014: “Good enough is not good enough”, he said. Usability and accessibility were critical, and this had dictated much of Equivio’s recent efforts – if you deliver analytics, the software must be easy to use, he said, and not just by “the special guys”. Equivio had reduced the waiting time between predictive coding rounds to zero, and worked on improved connectivity to applications like iCONECT’s XERA and kCura’s Relativity. The algorithms had been improved for dealing with low-richness cases and now offered tighter and better recall and precision.

Equivio had not stopped with development, Amir Milo said. Much of 2013’s efforts had gone into better education with boot camps and webinars – the six-part series on predictive coding had attracted between 200 and 250 participants each, with high satisfaction ratings from those who took part.

Equivio is following that up with a Star certification program for outstanding partner companies and individuals, with separate certification for technical knowledge, for demos and presentations and for commitment to excellence, innovation and outstanding service.

As if that was not enough, Equivio has also announced Zoom for Information Governance, a re-engineered version of its Zoom technology designed for automating enterprise compliance processes such as records identification, categorisation, schedule implementation and defensible deletion.

The press release about this includes an endorsement from Bennett Borden, Chair of the Information Governance and eDiscovery Group at Drinker Biddle & Reath, and a founder of the Information Governance Initiative on which I will write separately. Equivio Zoom can be trained to imitate the document classification decisions of an organisation’s legal and compliance subject matter experts which, as the press release puts it, allows organisations “to defensively delete legacy junk”.

This combination of improved technology, commitment to education and the application of Zoom technology to IG represents a big list for the New Year.

As a final point, Equivio already had one of the most attractive websites in the industry. That has been refreshed still further, with separate links for eDiscovery and Information Governance to reflect the related elements of Equivio’s business.

Guidance Software is giving a webinar on 5 February at 11am PST / 2pm EST called The end of wipe and image as we know it. The title refers to a standard approach to security breaches where malware triggers a security breach and the company’s IT teams rush to deal with it by wiping the affected drives and restoring them from their image files.

Even if you assume that any data, system preferences etc have been stored or copied elsewhere, this approach can result in severe downtime, with the drive inaccessible whilst the re-imaging takes place.

This webinar, presented by Ale Espinosa, Senior Product Strategist at Guidance Software, suggests a different way.

Registration for this webinar is here.

eDiscovery software companies depend very much on the partners who sit between them and their clients. iCONECT, makers of the XERA eDiscovery platform, have a legal service provider network of consulting firms, Big 4 consultancies, and eDiscovery / litigation support service providers around the world.

iCONECT has launched a partnership awards program which recognises those who contribute most to product vision and development, customer service, engagement with clients, and joint events, in addition to the quality of the resources and service which they bring.

There is a press release about this here.

A recurring theme over the past year has been the ever-increasing amounts of data captured by and stored in devices which we use every day, often without thinking about its potential use as evidence.

This is one of AccessData’s specialist fields with their MPE+ application dedicated to this task and AccessData is sponsor of a webinar called Tales from the Trenches: Blue Shield In-House Team uses Forensics and Mobile Device Discovery Techniques to Optimize E-Discovery. One of the speakers is is Caitlin Murphy, Director, Product Marketing and Strategy at AccessData. Caitlin Murphy was the star of a video which I made at ILTA in Las Vegas last year on this subject.

The other speakers are Jon Johnson and Mark Menz of Blue Shield who talk about practices and workflows which have saved over $1 million in legal services costs. The moderators, as usual, are George Socha and Tom Gelbmann.

Registration is here.

kCura has long led the way in encouraging integration between its review platform and other applications, allowing clients to use the tools of their choice as part of a seamless process. The Relativity Ecosystem includes a wide range of applications, many of them well-known products in their own right, which can be used in conjunction with Relativity.

OrcaTec is a provider of predictive coding and advanced analytics. Until now, OrcaTec data was exported into Relativity as an overlay. That process has now being made bi-directional, allowing users to jump back and forth between systems during the review, using whichever functionality is desirable for the stage in hand.

One can envisage circumstances in which senior lawyers are continuing their investigations in OrcaTec whilst a review team begins work on data which has already been exported to Relativity. The tags assigned in either system can be sent to the other and searches built in OrcaTec will now be available in Relativity.

You may also be interested in an article by OrcaTec’s Herb Roitblat called The Schlemiel, The Schlimazel and The Psychology of Reasonableness which turns aside from rules and technology to consider the psychology of dealing with opponents and with the biases which can creep into the handling of the data.

Epiq Systems has expanded in New York by opening a new document review centre in downtown Manhattan offering document review services, staffing, managed review, technology assisted review and audio review. The press release is here.

Epiq now has five review centres in New York. Since the volume of litigation has not noticeably increased, and since Epiq is not the only company providing managed review services, one must conclude that more and more law firms are turning to the use of managed review services as a transparently-priced and efficient means getting through this most expensive component of an eDiscovery exercise.

Whilst on the subject of Epiq, here is a link to the Autumn / Winter edition of Epiq Insights with links to other articles of interest including one by International Managing Director Greg Wildisen on Global Regulation, Cross-Border Disputes and Growing Cooperation between National Regulators.

Nuix, makers of eDiscovery and information governance software, are joining forces with EDRM (the Electronic Document Reference Model) to present a webinar at 1:00pm Central on 23 January called Evolving eDiscovery Workflows for the Future.

Lawyers and their clients look for the ideal combination of speed, accuracy and low cost. eDiscovery service providers must manage large volumes quickly, accurately and defensively while still making profit. Fast processing and accuracy provide only part of the answer. The rest lies in the processes and workflows built around the software and in the skills of the people who manage the projects

This webinar looks at case studies from legal service providers which reconcile the apparently conflicting requirements. The panel will describe processes used, the benefits achieved and the lessons learnt.

The speakers are Alexander L. Shusterman, eDiscovery Solutions Analyst, Lighthouse eDiscovery and Joe Utsler, Director of Product Marketing, Nuix. The moderators are Tom Gelbmann and George Socha of EDRM.

Registration is here.

Guidance Software is presenting a webinar on 29 January called Defensible eDiscovery Workflow: Four Real-World Scenarios.

Guidance Software owns the EnCase range of products designed for the the forensically-sound collection of digital evidence and its subsequent management. Its products include EnCase Forensic, EnCase Enterprise and EnCase eDiscovery as well as growing range of products for security and incident response purposes, including EnCase Cybersecurity and EnCase Security Analytics. Guidance Software also provides a range of services covering the same subjects.

The services side emphasises that, although the right technology is critical, how it is used dictates not only its value as evidence and other legal matters, but also the efficiency of the process.

This webinar will use real-world scenarios from industry leaders to look at the best practices which have evolved through the use of a case in HR investigations, regulatory cases and litigation of all kinds.

The webinar will cover:

• A standard e-discovery workflow that can be tailored to your business
• Examples of how real companies conquered specific e-discovery process challenges
• Legal requirements and how those can be translated into IT implementations

The presenters are

Chad McManamy, Assistant General Counsel, Guidance Software

Daniel Smyth, Principal Consultant, EnCE, EnCEP, Guidance Software

Jason Pickens, Principal Consultant, EnCE, EnCEP, Guidance Software

Registration is here.

Consilio is a provider of eDiscovery software and services, with feet across the eDiscovery globe. Its locations across the US, Europe and Asia inevitably involve it in the complexity of cross-border litigation, where multiple languages, disparate data types and varying and ever-stricter data protection requirements can add significantly to the costs of collection and the subsequent stages of discovery.

The right technology is essential, but so too is the skill and experience which goes into the development of appropriate processes, repeatable workflows and reports which keep lawyers and clients abreast of timescales and costs.

It is the latter points which are the main subject of a webinar called Saving Dollars, Euros and Yen: understand and control discovery costs in cross-border litigation, which takes place on 24 January at 1.00pm EST.

The participants are:

Rachel Rubenson, Associate Vice President for Litigation at Barclays
Scott Reents, eDiscovery Attorney for Cleary Gottlieb Steen & Hamilton
Mike Flanagan, General Counsel at Consilio, former litigation partner at Gibson Dunn
Robert Wickstrom, Vice President for Consilio

The subjects to be covered include:

• Creating effective cross-cultural project teams with internal and external resources
• Designing efficient workflows to accommodate varying requests in multiple jurisdictions
• Architecting data hosting in light of data protection requirements
• Assessing potential costs and monitoring project spend.

Registration is here.

The Sedona Conference has announced the appointment of new members to the steering committee of Working Group 1 on electronic document retention and production. With effect from 1 January 2014, Cecil Lynn, Dean Kuckelman, Eric Mandel and Ronni Solomon join the steering committee whose members already include Kevin Brady, Bill Butterfield (Vice Chair), Conor Crowley (Chair), Maura Grossman, Sherry Harris, John Rosenthal, David Shonka, and Paul Weiner; and Chair Emeriti Tom Allman, Jonathan Redgrave, and Ariana Tadler.

The Sedona Conference is running a webinar on 29th January at 1:00pm EST called 2013 eDiscovery Year in Review. As well as discussing significant cases such as Sekisui v. Hart and Kleen Products v. Packaging Corp. of America, the panel will cover topics described in the following pleasingly unconventional way:

• the limits of cooperation
• the elusiveness of cost shifting
• the novelty of new media
• the squishiness of proportionality
• the stickiness of TAR, and
• the scariness of sanctions.

Ken Withers of the Sedona Conference is the moderator and the panellists are Thomas Y. Allman, University of Cincinnati College of Law, Hon. Robert B. Collings, U.S. District Court for the District of Massachusetts, Boston, MA and Cecil Lynn of eBay Inc.

Registration for this webinar is here.

I also draw your attention also to the Sedona Conference one-day programme on Cross-Border Discovery and Data Protection Laws, taking place in San Francisco on 9 April. The event will focus on:

• The “Snowden effect,” or how the recent revelations about U.S. government activity have affected the development and enforcement of data protection laws outside the U.S.
• The perspectives of U.S. judges and E.U. data protection experts on the latest cross-border discovery issues, proposed regulations and emerging data privacy issues.
• Practical strategies on how to develop protocols to comply with international discovery obligations in the face of the ever-changing litigation, regulatory and political environments.

The co-chairs are Amor Esteban of Shook Hardy & Bacon LLP and David Moncure of Shell Oil Company and the panel members include judges, and lawyers from industry and law firms.

Registration is here.

A webinar is taking place TODAY, 9 January at 1.00pm EST, with the title Emerging E-Discovery Challenges in Construction Cases: Tips, Tricks, Tweets and Texts. It is organised by the American Bar Association, and Albert Barsocchini, Head of Strategic Consulting at NightOwl Discovery is one of the speakers. The Programme Description and registration information can be found here.

I have had some recent exposure to the implications of managing electronic documents in construction litigation from spending a day moderating a training day in London for TeCSA, the Technology and Construction Court Solicitors Association. The output from that is a new eDisclosure Resources section  on the TeCSA website. I have also been asked to join a new TeCSA eDisclosure Working Party, so will have further involvement as the new TeCSA eDisclosure Protocol takes effect.

Although there are obvious differences between the rules relating to eDiscovery / eDisclosure in the US and in England and Wales, the implications for the parties and their lawyers are much the same. The ABA webinar looks at a typical construction project dispute with, as an interesting and topical twist, a focus on capturing and mining the data from mobile devices and various communications platforms – the nature of a construction project is that many of its participants work away from the office and are more dependent that most on mobile devices and on whatever means are available to communicate. This subject, as regular readers will know, is another area on which I have focussed recently.

In addition to Albert Barsocchini, the faculty for this webinar includes Jennifer A. Mahar of Smith Pachter McWhorter, PLC and John W. Simek of Sensei Enterprises, Inc.

What may be the first eDiscovery webinar of 2014 is to be given by eDiscovery software provider iCONECT on 8 January at 1:00pm EST.

Its purpose is to demonstrate the various review workflow enhancements in the latest release of iCONECT’s review platform XERA, including enhanced document compare, improved navigation, static column customization and targeted coding requirements.

The presenter is Iram Arras. Registration is here.

Guidance Software makes good use of webinars to explain its products and their uses by means of webinars. EnCase Forensic has now reached Version 7, and a webinar on 14 January 2014 at 11.00am PST / 2.00pm EST gives users and prospective users a guided tour of the new functionality.

The subjects to be covered include:

• Managing a case in the EnCase v7 Environment
• Customizing the EnCase v7 Evidence Processor
• Conducting and Managing Searches
• Sharing Evidence with Co-Investigators and non-EnCase Users

The presenters are:

Ashley Hernandez the EnCase v6 to v7 “Transitions” Class Trainer at Guidance Software and Robert Bond the Product Marketing Manager for EnCase Forensic

Registration is here.

I have written recently about a couple of white papers issued by information management and eDiscovery software provider ZyLAB. In each case, the focus of the papers has been on applying ZyAB’s processing and analytical power to discreet areas of concern to corporations including intellectual property and privacy.

ZyLAB’s paper is called Breaking the Fraud Triangle: ZyLAB Fraud Prevention and Detection Program and concerns the use of big data analytical tools to identify activities which may involve fraud and/or breach of security and compliance policies. The “fraud triangle” consists of incentive / pressure, opportunity and rationalisation, any or all of with are susceptible to identification if you have the tools to search and analyse them.

Recession tends to expose fraud, not because hard times provoke it (providing both incentive and rationalisation) but because of closer scrutiny as companies look for savings. Mary Mack, Enterprise Technology Counsel for ZyLAB points out that few companies allocate extra people to this task, perhaps because they are unable to calculate the ROI of doing so. Mary Mack says that the use of appropriate technology allows companies to “extend their reach without extending their staff”.

You can download the white paper and other ZyLAB resources from here.

A welcome new addition to the eDiscovery blogosphere (now that “blogosphere” has been mentioned in an English judgment, I suppose it is all right to use it) is one called Flipping the Gorilla by Marc Jenkins, VP Knowledge Strategy at Cicayda and Adjunct Professor of Law at Vanderbilt University. I will leave you to work out what Gorillas have to do with it. You can find the blog posts, with other Cicayda resources, here.

Marc Jenkins is presenting a webinar on 19 December at 12.00pm EST with the title Lessons from David & Goliath on legal process improvement and litigation search methodology. Its theme, and the David and Goliath reference, comes from Malcolm Gladwell’s book David and Goliath: Underdogs, Misfits and the Art of Battling Giants.

The Giants in this context are the big law firms or other big players in the provision of services to the legal market, assumed by virtue of their size alone to have the advantage over puny rivals. The small businesses, so conventional wisdom has it, stand no chance of taking market share away from these large and confident players. Yet David won his battle with Goliath; why should a nimble, small business not defeat a bigger player in the same way?

Gladwell’s point is that Goliath was doomed from the moment David dropped by the battlefield to deliver bread and cheese (note that David wasn’t even supposed to be taking part in the battle but was the equivalent of the pizza delivery boy who happened to be in the office when Goliath turned out to do his chest-beating thing). A large oaf in heavy bronze armour stood no chance against an agile youth with a sling with which he had already killed a lion and a bear. It is not merely plausible that a small player – and a passing amateur at that – should defeat the giant, but inevitable.

The parallel is obvious, even if it only runs only so far. Small businesses can overthrow much bigger ones with a better proposition for clients. The Israelites effectively outsourced the task to someone else, someone without the traditional formal training but with a specific skill which did the job with minimal use of resources. They wanted to kit him out with conventional equipment (armour, a helmet and a sword) but he preferred his own tools. He did the job.

That’s my take on it anyway. You can find a summary of Marc Jenkins’ intentions here, along with a link via which you can attend the webinar on the event page here.

New ideas and initiatives continue to pour out of information management provider ZyLAB aimed both at proactive intelligent governance programs and at urgent demands for information for disputes and investigations.

One of these is an Intellectual Property Protection Program for Big Data announced a few days ago – the press release is here. Its rationale is that a company’s intellectual property is its lifeblood and is made up of disparate sources spread about a company. You cannot protect what you do not know about, and ZyLAB’s new initiative repurposes its well-established information management and eDiscovery tools for the specific purpose of identifying intellectual property assets. Part of this is defensive, enabling IP to be protected against theft or other security breaches; part of it is aimed at maximising the value of the IP – again, you can’t use what you don’t know you have.

A separate but related initiative is ZyLAB’s Privacy Protection Program for Big Data – the press release is here. The principles are the same, focusing on data residing not only on company networks but on individual devices, which contains personally identifiable information whose presence constitutes risk, not least the risk of inadvertent disclosure as a result of a data breach or oversight.

The relevant skills and technology have recently been applied to the widely-reported exercise to identify and cleanse PII from the Enron data, an exercise in which EDRM and Nuix also took leading roles (the press release about it is here).

ZyLAB’s processing, content analytics and search capabilities, including the ability to handle multiple data types and a wide range of languages, were well tested during this exercise and the new initiative brings that same capability to the needs of corporations for managing their own data.

Eddie Sheehy, CEO of Nuix, has published his 10 predictions (well, 11 actually, but who’s counting?) Relating to the management of unstructured data 2014. You can find them here.

Most such sets of predictions (including mine) begin with statements of the bleeding obvious and end with some off-the-wall guesses, with the middle ground occupied by reasonable assumptions ranked by the order of importance and the likelihood that they will happen. Eddie Sheehy’s first point – that data created, sent and stored will continue to increase vastly – is an obvious but necessary preamble to the rest. All the rest are likely to happen, and Eddie Sheehy’s only problem must have in deciding what order to put them in.

Reduced to the fewest possible words, the predictions amount to this: that more and more data will move to the cloud, where new difficulties arise with search, and specifically eDiscovery search with its demands for both speed and accuracy; fewer and fewer providers of software and services will have the skills and the resources to manage this and the result will be yet further consolidation as bigger companies acquire smaller ones for their client base and their human skills; cyber security and privacy move up the agenda, relegating other issues which have seemed important in prior years.

Eddie Sheehy’s final point is that the skills, tools and processes needed for any one of these areas apply or are easily adapted to the others; law firms, providers and individuals with eDiscovery skills will find new demands for their products and services in an information governance field which is effectively unlimited in scope. Nuix was the first to enunciate this now obvious proposition in my hearing at their excellent event in Palm Beach a while back, and Drinker Biddle’s engagement of Jason Baron is the latest and most obvious manifestation of a trend which others will follow but will struggle to catch up with.

If asked to pick one point which stands out from Eddie Sheehy’s survey, I would settle for the development of managed services, enabling corporations to take more of the process in-house; they will do this as much as anything for security reasons as for reasons of cost, adapting the search and analytical technology of eDiscovery for corrective and defensive reasons. We will also see work going in the opposite direction as companies and law firms outsource work which they cannot do effectively or cost effectively in-house.

If I were to challenge any of the predictions, it would be the assumption that the shortlist of software providers will shrink to two or three during 2014. One of the most interesting developments in the past year has been the springing up of new and agile players whose propositions, and in particular pricing propositions, will nibble away at work which has been the preserve of bigger players. That is not to challenge the primary proposition that some names will disappear from the scene.

I do not generally involve myself in the mechanics of eDiscovery software. I am not a user and I do not get involved in system selection, and am accordingly keen to leave the analysis of functionality to others.

I am on the record, however, as praising iCONECT’s XERA review platform for its obvious appeal to those who use it, appearing in the form of attractive and easily-navigated screens which are customisable to the use of reviewers with different requirements.

This matters for multiple reasons and not just because a happy user is often a better one. Anything which shaves a few seconds off the per document review time quickly adds up to significant savings in time and money.

iCONECT has focused very much on this since the launch of XERA, and the latest round of changes are aimed at maximising the potential of XERA’s processing power by improving the user experience. The specific changes are identified in this press release

iCONECT is good at online demonstrations, with regular events either according to a timetable or on demand. I will let you know when the new features are available for demonstration.

Here are the pictures (my pictures as it happens) of the UBIC Washington event last week, together with a video of Jason Baron of Drinker Biddle delivering his keynote speech.

I will write about this event in due course.

UBIC plans others in its signature series of seminars in the US and Asia – there is a press release about that here.

A few of the photographs appear below.

Jason Baron of Drinker Biddle

 US Magistrate Judge John Facciola

Chris Dale with Patrick Burke of Reed Smith

Photos here and on the UBIC site by Chris Dale

Investment bank Jefferies Group has taken Bloomberg Vault for to manage the enormous volumes of information which Jefferies must keep and make accessible, often at short notice.

For many companies, information governance appears as optional, something for which time and budget may be found one day. If you are a large company in the financial sector, you do not have the option of deferring the task. Legal and regulatory demands require near-instant access to information about past decision-making and very quickly.

The conventional expression “record-keeping” is barely adequate to describe the duty to provide pre-and post-trade communications about transactions, including recorded calls, emails and instant messages.

Quite apart from the specialist nature of this task and the speed with which it must be performed, the volumes are enormous, the data security implications are very significant and the downside for getting it wrong can be very high.

Bloomberg is perhaps better placed than anybody else to provide the speed, scalability and security required in this context, since it is already the de facto communications and archiving tool for most financial institutions. It is an obvious extension of Bloomberg’s data provision and data management functions that they should be brought in to handle the archiving and eDiscovery obligations arising from these high volumes of specialist data.

Such companies may be required to comply with trade reconstruction requests under the Dodd-Frank Act within 72 hours of demand being made, including communications of whatever kind from before, during and after the transaction. If you can comply with that, you can comply with anything.

There is a news feed item about Bloomberg’s Jefferies deal here. The Bloomberg site about Bloomberg Vault is here, explaining how the world’s largest private network addresses information management, regulatory compliance and eDiscovery obligations of companies like Jefferies. Multiple email platforms, social media, instant messaging, audio and the rest are all catered for, and there is a compelling argument for putting it all in one hand – as long as the infrastructure and support is there, which it clearly is in Bloomberg’s case.

Not the least of the attractions is Bloomberg Local Vault. I spend quite a lot of my time talking and writing about the privacy implications which arise when litigation or regulatory investigations raise conflicts between very wide discovery obligations on the one hand and tightly restrictive privacy and data protection laws in various jurisdictions.

These present apparently insuperable problems for many companies, who must identify potentially discoverable material and then find a way through the conflicting duties – and quickly. The key to Bloomberg Local Vault lies in its name – data, including data indexes, are archived in-country, in systems which are simultaneously stand-alone and integrated; search requests can be distributed across Bloomberg’s private network but local rules can be applied to them, managing the response appropriately.

The Bloomberg Vault page includes two videos. One is a webinar given by Alan Daley from Gartner and Harald Collet of Bloomberg which describes what the problem is. The other is a short summary of how Bloomberg Vault addresses the issues which arise.

ZyLAB’s range of information management solutions extends across the entire life of data from creation through to eDiscovery / eDisclosure obligations. Proper management of data archives is the only practical way to control the costs and risks of eDiscovery. More positively, adequate control of archives, including controlled deletion, is a way to uncover value within document repositories.

Johannes Scholtes, Chief Strategy Officer at ZyLAB, is joined in a webinar by Jason Baron of Drinker Biddle & Reath in a webinar on this subject on 17 December. Jason Baron is part of Drinker Biddle’s assertive information governance team; his experience in his former life as Director of Litigation at the National Archives and Records Administration makes him one of the best qualified and thought-provoking speakers on the subject.

The webinar will consider the requirements for long-term preservation and archiving of email and other electronic records and give ideas for best practices based on Jason Baron’s experience. Johannes Scholtes will explain how the right technology can help mitigate risk and reduce costs.

The webinar is moderated by Mary Mack, Enterprise Technology Consultant at ZyLAB. Registration is here.

The US Federal Trade Commission has wide responsibilities which include the protection of customers’ data privacy rights. Its Division of Privacy and Identity Protection is stepping up its monitoring and enforcement activities, and Symantec are giving a webinar in conjunction with Inside Counsel which will cover this area.

It takes place on 12 December at 2 PM ET and the speakers are Katherine McCarron, an attorney with the FTC’s Division of Privacy and Identity Protection, and Matthew Nelson, eDiscovery Counsel at Symantec.

Subjects include:

• What kind of cases is the FTC targeting?
• Guidelines for preventing data breaches
• Responding to a civil investigative demand

You can register for this webinar here.