eDisclosure Information Project

An article called Managing E-Discovery Costs with Managed Review by Rachel Teisch on the Xerox Litigation Services blog shows that the subject of managing eDiscovery costs played as big a part at the Carmel Valley eDiscovery Retreat as it did at the Information Governance and eDiscovery Strategy Exchange which I attended in San Diego.

Our focus, as I am sure was also the case at the Carmel event, was on predicting costs, not least by reference to historical data of previous cases, and on comparing different ways of achieving the objective. One of the panels which I moderated in San Diego, for example,  compared a largely in-sourced approach with an out-sourced one.

Rachel Teisch’s article looks at out-sourcing review, and in particular at managed document review by a provider (of which Xerox Litigation Services is one) which marries the appropriate technology with managed review, with both elements in the same hands.

The article stresses that “managed review should not be mistaken as an invitation to abdicate complete control over the review process”. It is an important point to make.  Most lawyers, I think, appreciate that they remain liable for the outcome of the review, whoever actually does it. What is easily missed is that out-sourced review, in the hands of a company like Xerox Litigation Services, is not a “fire and forget” delegation of work but an entirely cooperative exercise over which the lawyers retain complete control; the many merits of managed review, apart from transparency and predictability of cost, is that it leaves the lawyers to focus on the strategy and tactics and on supervisory control of the review, without the burden of day-to-day management of the people.

The predictability point is likely to become increasingly significant in England and Wales following the introduction of new rules on 1 April which provide for estimates of disclosure costs and, in some cases, formal budgets. Providers of managed review services are well used to predicting costs – they have to do it with every job they take on.

Is managed document review right for your next case? You don’t know unless you a) ask one or more providers for an estimate and b) can calculate the costs of doing it any other way. Since you can now expect case manageing judges, at least in England and Wales, to cross-question you about the options, it would be as well to start doing the sums now. Clients in any jurisdiction will be coming to expect that comparsion to be offered as a matter of course.

Bring your own device (BYOD) was one of the many subjects covered at the Information Governance and eDiscovery Strategy Exchange in San Diego where we heard from two corporations who are developing policies aimed at reconciling the benefits of allowing employees to use their own devices with the security, eDiscovery and other risks which that brings.

One of the speakers referred to the data privacy implications which arise in the EU and other jurisdictions which are more concerned about the use and misuse of personal data than is the case in the US. There was not time to explore this but now Jim Shook of EMC has done just that with an article on EMC SourceOne insider headed Archiving to help solve BYOD.

Jim Shook refers to guidance published by the UK’s information Commissioner’s office which sets out the policies which ought to be in place within corporations, not merely to protect themselves but to minimise the possibility of breaches of the law relating to personal data. Jim draws attention to the archiving possibilities relating to such of the BYOD content as can be stored centrally.

Where it is possible to protect data and to stay within the rules by this or any other means then the potential consequences of failing to do so are proportionately increased – if keeping a single central repository of data could have been done then it should have been done, and courts and regulators are unlikely to be sympathetic to those who failed to make use of such facilities. As Jim Shook says, this is a “solid best practice” wherever you are located.

One of the points made at the San Diego panel was that much of the data on many devices may only be replicated to its owner’s other devices, both as a licensing matter and in practice. Companies need to be alert to the difference between data which is, and data which is not, capable of being archived centrally as well as to the distinction between company and private information.

I have written more than once about Proof Finder, the version of the Nuix processing technology which can still be bought for $100, all of which goes to a charity involved in child literacy.

Armed with a copy of Proof Finder, lawyers and investigators can process up to 15 GB per matter.  In an article called Proof Finder: Touch the Monolith, Craig Ball draws attention, as he has done several times before, to the enormous benefits which this gives to lawyers managing smaller cases (not that 15 GB is exactly small, as Craig Ball observes).

I point you to the article mainly for the summary list of sample functions which can be performed in Proof Finder and for the story Craig tells of a case in which he encouraged his opponent to get a copy of Proof Finder in order to try and resolve disagreements which had arisen about culling and search. “We got more of the documents we sought and far less junk”, he says, which ought to be enough for most people.

The other point which Craig makes is that Proof Finder is ideal for lawyers who need to “peek” at the evidence in the way one did in the days when the client brought in a folder of documents for an initial assessment. These days, the shortest and smallest collection of documents requires more than flicking through the pages, and Craig argues eloquently that Proof Finder is a means of getting this which is accessible to everyone.

Why not get a copy now and see for yourself?

UK eDisclosure consultant Andrew Haslam of Allvision has published version 1.2 of his eDisclosure Systems Buyers Guide in conjunction with Charles Christian’s Legal IT Insider. It is available to download here.

I am often asked “Which software / provider is best for me”, a question which I am disqualified from answering for two reasons, the first too obvious to mention and the second because one can only properly address that question by undertaking a detailed question-and-answer exercise about the firm, its skill set and its cases.

Andrew Haslam’s guide gives a jump-start to this, and I commend it to every litigation department facing a case management conference in which eDisclosure will play any part. Since 1 April 2013, that means you.

I took part in a webinar yesterday organised by Consilio whose theme was the metrics of eDisclosure / eDiscovery with particular reference to the budgets and cost estimates now required in UK civil litigation. The star turn in the webinar was Marla Bergman of Goldman Sachs whom I came across whilst moderating a panel in Washington last year.

I will point you to the recording when it is published, but there is one point made by both Marla and me which I am keen to emphasise. The need to present costs estimates is primarily a rules-driven requirement. It has two other benefits, however, which are nothing to do with the demands of any court or judge. Clients quite like the idea that their lawyers are on top of the prospective costs of this most expensive component of litigation. As a quite separate matter, the lawyer who is armed with information about the different ways of tackling the problem and the costs of doing so has a significant tactical advantage over less well-informed opponents.

Marla Bergman said of this that “you can’t be pushed around” when disputes arise about the scope or method of giving discovery / disclosure. If one wanted a single message from this webinar, this was it.

As I say, I will point you to the recording in due course.

Apersee, run by George Socha and Tom Gelbmann, has updated its list of forthcoming webinars.

These include one on 28 May called Don’t Get Left Behind – eDiscovery is for Everyone, with Martin Audet of Nuix and William Hamilton, a partner at Quarles and Brady and Dean of the Department of eDiscovery at Bryan University.

It is followed by one on 30 May called Mobile Discovery and iOS. The presenters are Gail Gottehrer, Partner at Axinn Veltrop & Harkrider and Lee Reiber, Global Director of Mobile Forensics, AccessData.

George Socha and Tom Gelbmann are taking part in both. My experience as participant in their webinars is that they are lively and informal as well as educational.

I recently recorded a podcast with Rachel Teisch of Xerox Litigation Services whose purpose was to describe briefly the recent changes to the UK Civil Procedure Rules as they relate to case management and eDisclosure.

The aim was to give law departments, both within corporates and at external law firms, a summary of what to expect and how they might prepare for the new regime. There is a summary here of what we said, together with a link to the podcast itself. The focus is on anticipating the scope, the possible methods and the expense of giving eDisclosure and on the options which face legal departments and external litigation teams. These include broad choices such as that between keeping work in house or sharing the weight with third party experts.

Whilst writing about Xerox, I draw attention to their new LinkedIn group called E-Discovery Talk by Xerox which invites you to share thoughts and expertise on timely topics and trends and to participate in the dialogue.

By chance, I was on my way to Bury, near Manchester, to visit digital investigations and eDisclosure company CY4OR when the news broke of its partnership with Nuix. The press release is here.

The visit to CY4OR had been long arranged – the purpose was a video interview with managing director Joel Tobias as well as an opportunity to catch up with what CY4OR has been doing. The Nuix story gave me the opportunity to ask Joel what he expects from CY4OR’s software partners. His reply will appear in the video in due course, but he gave me a specific example.

CY4OR was using Nuix for a  processing job so large that CY4OR urgently needed to reinforce its already substantial (and recently upgraded) infrastructure. Nuix Europe MD Jim Kent arranged for the delivery that day of a suitably-specified server, enabling CY4OR to get through the job in minimum time. The end-client probably neither knows nor cares who is to be thanked when things go smoothly, any more than it cares who is to blame when they do not. This kind of support helps keep everyone looking good, and brings the client back.

I will bring you more about this partnership in due course.

A webinar which I am doing with Consilio on 24 April will focus on some of the positive aspects of the new UK Civil Procedure Rules relating to case management and disclosure. The panel includes Marla Bergman, VP, Assistant General Counsel, Legal and Internal Audit at Goldman Sachs and the moderator is Garry Bernstein, Director of Consilio in London.

Like all new rules, Rule 31.5 and the case management structure of which it is part, bring new duties including increased obligations to know about electronic sources of information, to discuss them with opponents and, most significantly, to estimate the costs of disclosure – this is a freestanding disclosure obligation, independent of the costs management regime.

Many lawyers, so one judge has predicted, will have “sweaty palms” at the thought of estimating costs; another has predicted “blood on the floor” when parties seek to vary their budgets. One person’s burden, however, is another person’s opportunity.

What if you were the lawyer who was on top of the numbers – who knows how to estimate costs, who keeps metrics from past cases, and who has an open line to providers who can quickly provide transparent predictions about the costs of alternative approaches?  That may inform not only your strategy but your tactics, in the sense that opponents and courts are more likely to be swayed by arguments from someone who clearly knows what he or she is talking about. Furthermore, the rules do not merely permit  or encourage arguments about proportionality, but positively require them.

Much of my thinking about  eDisclosure metrics, and their value in the right hands, comes from a panel which I moderated in Washington last year for Legal IQ at which Marla Bergman was my star panellist. She was eloquent on the value of keeping statistics from past cases to inform decision-making in present one, and it is easy to see how this applies to the obligations under Rule 31.5 to argue both about the scope of disclosure and about the method of doing it.

Registration is here.

One of the more interesting conferences which I attended last year was LawTech Europe Congress in Prague. It was the first eDiscovery conference organised in the region, and was exciting as much as for its potential as for its content.

I will write more about this in due course, but meanwhile draw your attention to the  press release announcing preparations for the 2013 event which will this year occupy two days, 21 and 22 of October.

I am taking part in a webinar with ZyLAB on 10 April. The title is Bridging the gap between legal and IT: working together in eDiscovery.

I will be there to talk about  increased efficiency and reduced
organisational risk, and will throw in my corollary message – that there
are benefits here as well, both for organisations and for the
individuals who grab the chance to focus the attention on the uses and
value of data as well as its risks and costs.

ZyLAB’s Johannes Scholtes will explain how technology can help both the lawyers and the the IT professionals. The wonderful Mary Mack will keep control as moderator.

The webinar is broadcast live at 11.30am EST. Registration is here.

The first case management conferences affected by the new eDisclosure obligations will take place on 16 April. Lawyers will have had the required discussions with opponents and will have filed reports about the anticipated scope of and cost electronic disclosure. Or perhaps they will have tried to get by without – we have been left in no doubt, as various articles from me and others have emphasised, that judges will be enforcing the rules and that relief from sanctions will be given only sparingly.

The roll-out of the new rules has been shambolic, judicial training almost certainly inadequate, and confusion will be widespread. It will all settle down in time, no doubt.

It seems a good week to organise a conference aimed at intelligent and positive discussion about eDisclosure generally and about its management, at a time when we face not just new procedural obligations but what the Master of the Rolls has called “the underlying philosophy of the Jackson reforms”.

We have just the thing for you, called eDiscovery for the Corporate Market, taking place in London on 17 and 18 April. The event is not a series of lectures but a set of round-table discussions, each led by moderators whose aim is to share their own knowledge, to identify points of concern, and arrive at constructive ways of surviving and thriving in the new environment.

Registration is free for members of corporate and law firm departments with some responsibility for eDisclosure, whether as a technical or as a legal matter. It would be good, too, to see some barristers, since they will be in the front line when the judges start throwing things, and might be glad of a shield in the form of ready arguments based on considered preparation.

We will also be covering the software tools and methods available to help, equipping you to talk with apparent confidence about predictive coding and managed review when the subject comes up – or, indeed, to initiate the discussion yourself.

Do please pass on this link to anyone who might benefit from attendance.

Here’s a reminder of a seminar to be given by Recommind at St Paul’s Cathedral on 27 March – next Wednesday – at 8.30am. Speakers include Senior Master Whitaker, Mark Surguy of Eversheds and Vince Neicho of Allen & Overy, as well as me.

I wrote about it here and registration is here.

We will bring you up to date on the development of the rules, the practical implications of new obligations which are only days away, and the tools and technology which help to control the time and cost of the work which will result as court management of electronic disclosure takes effect.

The full title of this webinar is Protecting Your ESI Blindside: Why a “Defensible Deletion” Offense is the Best Information Governance Defense.

It is a deliberately paradoxical title, implying that a positive and proactive attack on useless data is your best defence against eDiscovery sanctions, eDiscovery failures and excessive eDiscovery expense.

It is only relatively recently (with some exceptions) that courts have considered it necessary or helpful to enquire into a party’s records-keeping. It becomes increasingly material for them to do so, partly to test assertions as to the existence or otherwise of allegedly relevant documents and partly to assess the credibility of proportionality arguments.

The panel consists of The Honorable James C. Francis IV, U.S. District Court, Southern District of New York, Anne Kershaw, Founder and Senior Attorney, A. Kershaw Attorneys & Consultants, and Philip Favro, Discovery Counsel, Symantec

You should not, of course, need a judge to tell you that you can delete some at least of the stuff you keep. It is perhaps comforting, however, to hear it from a judge and one, furthermore, who is a leading authority on eDiscovery.

Among Anne Kershaw’s many contributions to this field is an article which she wrote long before the term “defensible deletion” reached common use, urging just that as a way of mitigating eDiscovery cost and risk.

This webinar takes place on Wednesday 27 March at 2pm ET | 11am PT. Registration is here.

One of the easy predictions for 2013 was that we would begin to see case studies, or at least anecdotes, about the use of technology assisted review. These are, of course, more valuable than any number of assertions  in marketing department brochures.

The most recent is UK-based and comes from the use by UK eDiscovery solutions provider Millnet of kCura‘s Relativity Assisted Review. kCura’s introduction is here and the case study itself is here. The things to focus on (apart from the £80,000 saving) are the table of statistics and the description of the methods used to cross-check the software’s conclusions.

It should be of particular interest to those who bang on about “black boxes” as a substitute for actually trying to understand technology assisted review or as a shelter against the certainty that clients will certainly want to know about savings of this order. Case managing judges, too, will expect to be told about the range of technology available to reduce costs, and in cases much smaller than the one in the case study.

I gave a talk in Manchester last year in the company of Terry Harrison of Hobs Legal Docs. Our subject then was the pending Jackson reforms, and we got a good audience both for the seminar and for a rather good post-event gathering in a nearby pub.

Jackson is now with us, and a repeat visit is in order. I am presenting a talk on the eDisclosure aspects of Jackson in conjunction with Hobs Legal Docs and The Royal Bank of Scotland on 11 April at 6.00pm for 6.30pm at the RBS offices at 1 Spinningfields Square, Manchester M3 3AP.

Apart from a summary of the rules themselves – some of which have been obscured by the appallingly inept roll-out of the final version – the themes will be two-fold: the tools and techniques which will be needed to face the new regime, and the benefits which will ensue for those who get on top of the subject and in a practical way.

The invitation is here with details of time and venue. Register by email to amanda.foster@hobslegaldocs.com or by calling 0161 228 330.

Epiq Systems brought out Epiq Portal 2.0 as LegalTech began. There is a lot of noise around then, however, and I generally prefer to let the dust settle before picking up on announcements. The press release is here.

The growth in data under management for eDiscovery purposes (and Epiq is reporting increased caseloads) brings with it an increasing reporting obligation on the part of those responsible for discovery exercises. It is not just that there are more cases: deadlines, whether imposed by court or regulator or expected by the client, require administrators and lawyers to know where they have got to on each case, not least so that exceptions and delays can be flagged and resources diverted to where they are most needed.

We are going to need this kind of management, and particularly the reporting which comes with it, as England & Wales moves into a new age of court-led case management. The old saying about not being able to manage what you can’t measure is not so much a business mantra as a statement of the obvious, and lawyers who can go into a CMC armed with this kind of information are better able to manage expectations and justify proposed timelines and extensions.

That is helpful anyway, whatever your jurisdiction and whatever the context – it can never hurt to be able to give a regulator sensible predictions about volumes and timelines.

The agenda has now been published for CEIC 2013, the conference for cyber security, eDiscovery and digital investigations led by Guidance Software, which this year takes place in Orlando between 19 and 22 May.

The agenda is available as a full schedule and as a list view. The latter helpfully allows you to untick session types which are not of interest, making it easy to pick out relevant ones – no small thing in a programme which runs from Sunday to Wednesday.

I am involved in a cross-border panel with Bryant Bell of Guidance Software and with Patrick Burke, formerly Assistant General Counsel at Guidance and now Counsel at Reed Smith LLP.

I am also  involved in a panel called Effective Information Management and Cost-Effective eDiscovery Processes. There are plenty of other interesting things going on. This conference gets bigger every year, which is why it has moved to Rosen Shingle Creek in Orlando. It attracts a very broad range of people, mixing the technical with the practical with the legal in a way which few other conferences do, to say nothing of a first class context for networking and social events.

You can register for CEIC here.

Collecting data in multiple jurisdictions is hard enough anyway for all sorts of practical reasons. One of the most expensive implications arises from the privacy and data protection rules which, despite common principles, can raise different issues in each jurisdiction.

Ken Rashbaum is a specialist in cross-border information governance. He is taking part in a webinar organised by ZyLAB and moderated by the excellent Mary Mack taking place on 21 March at 12:00pm Eastern. ZyLAB’s Johannes Scholtes will show how technology can help mitigate the legal risks.

Registration is here.

eDiscovery provider UBIC has announced a strategic alliance with NextGen for the joint development of audio analytics solutions for forensic investigations and eDiscovery.

Like everything else, our telephone conversations are increasingly being recorded, and not just in the context of financial dealings and other areas where such recordings are a regulatory requirement. There has grown a curious convention that every company you speak to gives notice that it is recording your call “for training purposes”.  They lie, of course – the primary purpose for collecting the information is to have evidence of what was said. By some curious paradox, these often tend to be the sort of companies which we don’t trust much anyway – banks, mobile phone providers, insurers etc – and their recordings are potentially discoverable at our demand in litigation by or against such companies.

The forensic analysis of audio is at an early stage – whilst the recordings are no different in kind to other “documents” for discovery purposes, they raise different issues, not least of proportionality given at the time it can take to process the information.

That is the purpose behind UBIC’s development plans in this area. There is more information here.

My involvement with Huron Consulting is mainly with Huron Legal’s eDiscovery practice. As a group, of course, Huron Consulting gives advice on a wide range of matters to professional firms.

One of those is the use by law firms of social media for their own marketing and business purposes in addition to the eDiscovery

implications both for themselves and for their clients.

Huron is presenting a webinar on 19 March at 12:00pm EST with the title What every eDiscovery Team Needs to Know About Social Media and the Cloud which covers the practical, compliance and policy aspects of using social media as well as the eDiscovery implications.

The speakers are Vincent M. Catanzaro, Senior Counsel, Global Discovery Manager, DuPont Legal, The Hon. Joseph A. Dickson, U.S. Magistrate Judge, U.S. District Court for the District of New Jersey and Gilbert S. Keteltas, Partner, Baker & Hostetler LLP. The moderator is James G Mitchell of Huron.

There is more information about the event here, together with instructions on how to register.

Guidance Software is giving a webinar on 19 March at 11am PDT with the title Top Advantages of Integrated Legal Review.

Corporations and law firms cannot complain about the range of choices which they face job by job and as a matter of policy across all jobs. Amongst the broad choices is that between having, on the one hand, the opportunity to put the data in the tool of choice at each stage in the process and, on the other hand, the benefits of keeping all the data in one hand throughout its life.

Guidance Software  does not only deal with identification, collection and legal hold, the areas in which it made its name. It also owns an integrated review tool following its acquisition of CaseCentral. This webinar explores the benefits of integration, covering the following points:

• Cost reduction through the ability to leverage prior work across multiple matters
• Faster resolution through analytics and faceted search
• Elimination of redundant reviews and consistent exclusion of privileged documents through the use of a centralized legal repository

The presenters are Mark Besser, Director of Field Services, Guidance Software and Bryant Bell, Senior Product Marketing Manager, Guidance Software.

The registration page is here.

A quick reminder that Recommind invites law firm associates and litigation support people to their city club drinks, pool and networking party tonight.

The venue is Eight Bank Members Club at Eight Bank, Change Alley London, EC3V 3ND from 6.00pm.

RSVP here.

Nuix joins forces with Apersee to give a webinar called Unlocking Predictive Coding to Find Facts Fast on 21 March at 1:00pm Central.

The subject is the use of analytical tools and techniques to find facts from documents by first defensively reducing the number of documents requiring manual review. If cost is an obvious driver, so too is the ability to find facts quickly including, perhaps, those which you did not know you needed.

The speakers are Stephen Stewart,  Chief Technology Officer, Nuix, Daniel Regard, Managing Director and CEO of iDS, and George Socha of Apersee; the Moderator is Tom Gelbmann of Apersee.

The registration page is here.

Compliance with the Civil Procedure Rules, old or new, is the least which should be expected of those who practice litigation. The new CPR regime of eDisclosure reports, active management and penalties for non-compliance brings implications which extend beyond mere compliance and into the management of law firm litigation departments and their relationship with their clients, not least as to fee arrangements.

eDisclosure consulting and technology provider Epiq Systems is holding a seminar on 23 April at 8:30am at 60 Cannon Street, London EC4N 6NP with the title Costs changes to the Civil Procedure Rules: Join the debate which aims to go beyond the bare recital of the rules. The advertised questions to be addressed include:

• What strategies can practitioners use to alleviate scrutiny on costs by the courts?
• Has traditional linear document review become an impractical extravagance?
• Will the rule change encourage in-house counsel to require more imaginative costs structures from their law firms?
• What is the court’s attitude to technology and outsourced review as a means of costs management?

The speakers are:

Master Colin Campbell, Senior Costs Judge

Michael Bacon, costs lawyer

Vince Neicho, Litigation Support Manager, Allen & Overy

Professor Dominic Regan, adviser to Lord Justice Jackson on costs budgeting

Epiq’s invitation is extended to those in law firms and companies with responsibility for commissioning and undertaking civil litigation work under the new rules.

The registration form is here.

An article on eDiscovery Journal by Barry Murphy called A Real Experience With Social Media Archiving draws attention to the difficulty of finding empirical evidence about social media collection and preservation. There is not much of it about, although pretty well everyone seems to agree that this is the next source of information which is not only potentially discoverable but which holds risk and benefit in equal measure.

Barry Murphy refers to some providers of social media collection / preservation / archiving. You might like to arrange for a demonstration from one of them, if only to find out what you may be missing – as in completely overlooking – in terms of evidence.

Finding evidence is what matters to the eDiscovery / eDisclosure people who form the bulk of my readership. There are other and more positive reasons for needing to keep on top of social media interaction. As an example from my own experience, I have a long-running difficulty with my mobile phone provider.  My only too large sample of its support staff suggests that the prime qualifications for working there are indifference, stupidity and lack of customer empathy in equal measure. I vented my frustration on Twitter yesterday and the company – or at least its Twitter support people – replied.

One of my tweets read “If you have someone of at least average IQ, willing to read old notes and take ownership of the problem you could save 3 contracts”. The reply reads  “If you need us we can see this to a resolution for you”.

If I were responsible for support at this outfit I would cherish this means of bypassing the deadheads on front-line support. I would by now have traced this complaint to the relevant support record and set someone intelligent to the task of solving the problem. It would be possible to turn this very public complaint into an equally public piece of good publicity. You cannot do that if you do not have some means of tracking, capturing and following up the social media interactions.

Recommind has organised a networking and social event for law firm associates and litigation support teams. It is advertised as “a night of pool, drinks and fun!” and takes place at Eight Bank, Change Alley, London EC3V, 3ND, starting at 6pm.

Recommind does this sort of thing well. Space is limited, and invitations can be obtained by completing the registration form here.

An article  called The Power of Sound by Martin Bonney and Deborah Blaxell of Epiq Systems, and published in The Lawyer (it is at page 26 here), makes it clear  both that sound recordings have moved to the mainstream in eDiscovery / eDisclosure and that technology is evolving rapidly to deal with them.

The article makes the point that one can sit people down to listen to recordings and be reasonably sure that they will capture anything of importance. The fact is, as the article observes, it will almost never be proportionate to manage audio files in this way when it can take up to four hours to transcribe one hour of audio.

Most of the article is taken up with helpful descriptions of the context and of the rapidly advancing technology in what remains a new area. The passage to which I would draw your attention specifically comes right at the end when the authors stress the need for “a considered and well-thought-out plan and consideration of the available options”

The new  procedural rules taking effect on 1 April in England and Wales require parties to understand, to discuss and to make proportionate proposals for the management of their electronic evidence. What that last paragraph reminds us is that managing audio is not something to be done on the fly. Even if the audio material lacks some of the complexity referred to in the article – foreign languages, for example – substantial amounts of time will have to be set aside to handle it.

As with everything else to be disclosed, it is important not merely to be able to say what exists, but to be able to give an assessment of its potential importance and of the time likely to be needed to deal with the recorded material – the elements of proportionality. That requires early attention to it so that its implications can be discussed along with the other material.

AccessData, provider of solutions for digital forensics, litigation support, eDiscovery and cyber security, is holding its big annual AccessData User Conference in Las Vegas from 23 to 25 April. The venue is the Aria,  and those who have stayed there before will know that the technology tone is set even in the bedrooms, where curtains, blinds, audio and everything else is controlled from a tablet-type device on the wall.

The keynote speaker this year is Dan Abrams, who, amongst other things, is legal analyst for ABC News. The conference brings more than 36 hands-on training labs from leading instructors in cybersecurity, computer forensics, e-discovery, and litigation support and serves as a forum for knowledge sharing and networking through a variety of thought leadership lectures from real-world experts.

Attendees of ADUC will have the option to attend preparation classes for SCE (Summation Certified Enduser), ACE (AccessData Certified Examiner) or AME (AccessData Mobile Examiner) with all three associated exams offered at the conference.  In addition, attendees can earn 22 CPE credits and a number of CLE credits during the event.

Registration for ADUC 2013 can be made here.

The fact that I rather liked its old website does not prevent me from appreciating iCONECT’s smart new site which launched this week. There is a reason why most websites follow a common form, to do with intuitive navigation, and it is quite difficult to come up with something which is attractive and different whilst still making it easy for the user to get to the parts you want them to see. iCONECT has managed it – an extension, perhaps, of the navigation expertise which it bring to its XERA platform.

By happy chance, the launch of the new site coincides with a story about iCONECT’s involvement in the BP oil spill case. Avansic: eDiscovery and Digital Forensics, one of iCONECT’s hosting providers, was chosen as the Plaintiff’s Steering Committee’s eDiscovery litigation support consultants and iCONECT was selected as the best software solution for the extremely large and complex eDiscovery exercise.

Vivian Tero of IDC has written a Buyer Case Study which looks at the requirements of the plaintiffs and at the reasons why iCONECT was chosen to provide the platform. This is a succinct summary, not a full requirements document, and is the more valuable for it.  It is not every day that one has to face the complexity of litigation on this scale, but the principles set out in Vivian Tero’s paper apply to more everyday cases. You can access the paper via the story here.

eDiscovery and litigation support are largely reactive disciplines, providing firefighting solutions to problems which have been triggered by a dispute or by alleged non-compliance with regulatory duties. We are beginning to see a focus on information governance, part of which is designed to anticipate and minimise potential eDiscovery problems (I say “part” because information governance has wider ambitions than this).

In an interesting move, international litigation support provider UBIC has announced that it is setting up a research and development centre to focus on the application of advanced technology to the anticipation and reduction of business risks. The aim is to bring together the disciplines of behavioural science and information science to provide companies with solutions to anticipate, prevent and respond to risk.

The new centre will be established in Tokyo and is due to begin operations in March 2013.

There is a press release with more details here.

eDiscovery and predictive coding software provider Recommind  is giving a seminar with the title 360 degrees on the  Jackson Reforms on 27 March at 8:30am in St Paul’s Cathedral.

The speakers include Senior Master Whitaker, Mark Surguy of Eversheds and me, and the session will be chaired by Nick Patience of Recommind. You can register here.

The timing is good, since the case management and disclosure elements of the Jackson reforms, along with the rest, take effect on 1 April.

As extra incentive, should you need it, the seminar will be followed by a complimentary 30 minute private tour of St Paul’s Cathedral, including access to areas not usually seen on a standard tour.

BBC’s Question Time was broadcast from St Paul’s recently. As usual, I did not get to the end (I have a finite capacity for idiots burbling tosh) but I gather that the closing credits included “Set design: Sir Christopher Wren”.  The beauty of the place provides a second reason for attending this session which will, I think, be worth attending for it own sake.

St Paul’s photograph by Chris Dale

Lord Justice Jackson’s review of litigation costs covered very much more than the case management and eDisclosure components which are, inevitably, my primary focus.  As with any major reforms, there are winners and losers or those who see themselves as such.  The range of the reforms is immensely wide and one can accept some parts while rejecting others.

I have enough to bite off in my own small sphere, and support, more or less without qualification, Lord Justice Jackson’s ambitions to control the scope, the method and the cost of disclosure. Like everybody else, I deplore the manner in which these reforms have been rolled out, something which cannot be attributed to Jackson himself. We will all have detailed observations on the minutiae of the budget proposals, but the detail has been rather lost in the late, incoherent and damaging launch.

Kerry Underwood ranges across the whole field covered by Jackson and has produced a comprehensive survey headed Jackson implementation overview – with all the links. You can get the flavour of it from his opening paragraphs which include the following:

The programme of implementation and announcements is shambolic.

Few observers now doubt that this will be the most chaotic period in legal costs and funding since the concept of legal costs was codified in the Statute of Westminster 1275.

The senior judiciary, according to the ever-reliable Professor Dominic Regan “despair of the shambles surrounding Jackson implementation”.

You do not have to agree with all Kerry Underwood’s conclusions to be clear that you will not find a more comprehensive critique anywhere.

Doug Austin has been interviewing various  eDiscovery / eDisclosure industry leaders for his eDiscovery Daily Blog. The most recent interview is with Nigel Murray, managing director at Huron Legal in London.

One of the recurring themes in Nigel’s analysis is the importance of the human element in applying technology to technology assisted review. Huron itself has recently launched what it calls Integrated Analytics which combines the skills of analytics specialists with lawyers and database administrators, provided as an outsourced service to companies and their lawyers.

Another subject, no less important for being unsurprising, is the management of company data to head off eDiscovery / eDisclosure costs, amongst other benefits.

The third  element which Nigel covers is information security, and specifically security within law firms. We are hearing much more this year already about corporate fears that their data is at risk when it passes into the hands of their lawyers – and we get this not just from companies themselves, but by report from the hackers who seemed to see law firms as a soft touch.

Michael Becker of Consilio is taking part in a workshop called Best practice 2013 – Anti corruption / compliance taking place at the Charles Hotel in Munich on 5 and 6 March.

The notice about this is, unsurprisingly, in German, so I will not attempt a summary. You will find it here.

UK eDisclosure/eDiscovery consultant Andrew Haslam of Allvision annually produces a report on LegalTech drawing on the views of a wide range of people to supplement his own reactions.

His article LegalTech 2013–  making the most of IT has now appeared on Legal IT Insider. You will not find a more comprehensive review anywhere of both the show itself and of the subjects which came up.

Consilio, until recently called First Advantage Litigation Consulting, is taking part in ACEDS’ Third Annual eDiscovery Conference and Exhibition between 28 February and 2 March in Hollywood, FL.

Adam Pollitt, Senior Vice President Client Services for Consilio in Frankfurt, is taking part in a panel called “Crossing Borders, But Not Boundaries — Navigating Other Nations’ Privacy and Data Laws to Get the Evidence You Need”. Two words matter there – evidence and need – in contrast to all those cross-border eDiscovery exercises which, driven by opponents, courts, regulators and fear of oversight, often seem to overlook that what is required is evidence and that you don’t need everything.

It is a measure of Consilio’s commitment to mainland Europe that Adam Pollitt has moved from the US to this senior position in Frankfurt. He leads the company’s global project management team and has been influential in the development and deployment of new services and technology. His expertise in eDiscovery and litigation support includes electronic evidence recovery, database design, and the application of technology to complex litigation, antitrust matters and investigations, including the internal investigation of corporate corruption at Siemens, one of the largest eDiscovery projects in history.

There is a press release here.

EDiscovery and information management technology provider ZyLAB has announced the appointment of Simon Maguire as Sales Director for ZyLAB UK. The press release is here.

I recently spent an afternoon with him at ZyLAB UK’s new offices in Bracknell and came away convinced that the ambitions expressed in the press release – bringing on new customers, ensuring satisfaction of existing customers and defining and executing a UK business strategy – were amply achievable in his hands.

ZyLAB has just won a major contract for the provision of its software to a US regulator, enhancing its position as a provider of major installations In the face of strong competition and a rigourous selection process. The software embraces information governance through to every stage of eDiscovery / eDisclosure. Simon Maguire takes up his position at a good time both for him and for ZyLAB.

This is a reminder of the webinar to be presented by kCura on 28 February at 11 AM CST at which Dr David Grossman, Adjunct Professor of Computer Science at the Illinois Institute of Technology, will conduct an interactive discussion on the statistical validation of relativity assisted review and on the statistics involved in a computer-assisted review workflow.

You may be interested in my article about this called Applying Science to the Validation of Technology Assisted Review and to Dr Grossman’s paper Measuring and Validating the Effectiveness of Relativity Assisted Review.

Registration details for the webinar can be found here.

kCura’s annual user conference, Relativity Fest, offers hands-on labs, breakout sessions and practical knowledge which delegates can use immediately.

This year’s Relativity Fest takes place in Chicago between 6 and 8 October. The announcement is here, and more details will be published soon. Save the date.

The use of predictive coding and other machine learning algorithms in eDiscovery is a very practical and commercial application of advanced and sophisticated search technology whose use requires the development of best practice standards. No one does this better than Jason Baron, who, with others, has brought a serious level of scientific and academic study to the practical problems faced by courts and lawyers in managing eDiscovery / eDisclosure in a way which is simultaneously cost-effective and defensible.

The latest in a series of DESI (Discovery of Electronically Stored Information) workshops will take place in Rome on 14 July 2013. Jason Baron will be joined by Jack G. Conrad of Thomson Reuters, Switzerland, Dave Lewis, David D. Lewis Consulting, USA, Debra Logan, Gartner Research, UK, Douglas W. Oard, University of Maryland, USA and Fabrizio Sebastiani, Istituto di Scienza e Tecnologia dell’Informazione, Italy

I very much hope to be there, as an observer rather than a participant.

There is more information here. Contact Jason Baron (jason dot baron at nara dot gov) direct for further information.

Guidance Software is presenting a webinar on 26 February with the title EnCase Forensic v7: the Best Practice in Digital Investigations.

The webinar covers significant new features of EnCase Forensic, including faster and Prioritized Processing, smartphone acquisition, enhanced search functions, and streamlined reporting templates.

Those attending will learn how to:

• Work using best practices in forensic investigations
• Prepare your hash library
• Set evidence, cache, and backup options
• Add evidence, including evidence from smartphones and tablets
• Select reporting templates
• Process evidence

Further information and registration details can be found here. Other forthcoming Guidance Software webinars are listed here.

I have learned by now that there is no point in attempting a wide-ranging summary of the themes and players at LegalTech because Gary MacFadden will do a much more comprehensive job of it than the rest of us put together. I bumped into him ten yards into my first foray into the exhibit hall and decided I would learn much more by talking to him than by any amount of wandering the floors.

His summary duly appeared on his Parity Research blog, with the title Information Governance Reshaping eDiscovery Landscape: A Major Theme at LegalTech 2013. He helpfully includes links to round-ups  by others, leaving me free to cherry-pick a few subjects which matter most to me.

His report is long, but there are no wasted words in it and I will not trouble you with a summary. The last part of it is a list of providers who caught Gary’s eye as he strode round the floors, which serves as a snapshot of  many of the main players.

The picture above, incidentally, is a miniature of Gary MacFadden’s “IG Landscape Super Quadrant” which is explained in his article.

I wrote recently (see FTI Report – Advice from Counsel by Ari Kaplan: Trends that will change E-Discovery) about the Advice from Counsel study written by Ari Kaplan in conjunction with FTI Technology whose strength is to bring qualitative and anecdotal views to supplement the mere numbers which one gets from many reports.

Ari Kaplan is one of the speakers at a webcast to be given by FTI Technology on Wednesday 6 March at 10:00am PT / 1:00pm ET. The other participants are Renee Meisel, Legal Director at Dell Inc. and Mike Kinnaman, Senior Managing Director a FTI Technology.

The title is Trends that Will Change eDiscovery (and What to Do About Them Now) and the discussion topics include the adoption of predictive coding, the issues raised by Bring Your Own Device (BYOD) and (most interesting from my point of view) the calculation of eDiscovery costs. The speakers look ahead as far as 2015, armed with the background information from those at Fortune 1000 companies who, as I said in my article, are engaged now in the matters which will be the subject of case reports by 2015.

You can register for this webcast here.

Every organisation ought to have a cloud strategy, even if that strategy is to (try and) ignore the promise and the challenges of the cloud. One ought to have some idea of the differences between a public and a private cloud, and to understand the main legal considerations of moving to the cloud, including data privacy, secure access and who is responsible for your ESI.

FTI Technology has a webinar on this subject on 27 February at 10am PT / 1pm ET, with the title The Legal Implications of E-Discovery in the Cloud. The speakers are David Horrigan of 451 Research, Caroline Sweeney, Director of Practice Group Technology Services at Dorsey & Whitney, and Joel Jacob, Principal Product Manager at FTI Technology; the moderator is JR Jenkins, Director, Product Marketing at FTI Technology.

A team of this calibre is well able to cover this ground and to give practical guidance to those whose business involves (or perhaps should involve) moving data to the cloud or advising those who are doing so.

Registration is here.

The proper link to this post is here.

Equivio is well known for its analytical solutions for eDiscovery. Its overarching product, Equivio Zoom, bundles together tools for  near-duplicate detection, e-mail threading and predictive coding, together with its new product, Equivio Themes, which allows identification of thematic links between documents.

Its predictive coding tool, Equivio Relevance, is one of the best-known in the market, and is accompanied by a clarity of explanation which is not found at every provider of predictive coding tools.

Equivio recently ran a full-day educational seminar on the essentials of predictive coding in New York. The reaction of delegates was such that a second such seminar has now been organised for 5 March in Washington DC. The agenda consists of sessions delivered by industry leaders in eDiscovery as well as Equivio subject matter experts, and covers the following topics:

Predictive coding raises challenges both at the conceptual level and in the detail of its use. Those new to the whole idea may accept its many benefits in principle without a clear understanding of how it is to be used; those with some experience can benefit from more detailed knowledge of the concepts, processes and workflows which are available to administrators and users.

This is an invitation-only event – there is more information about it here. If you are interested in attending, contact Equivio’s Warwick Sharp by e-mail to info@Equivio.com

AccessData’s Mobile Phone Examiner Plus (MPE+)
is designed to help lawyers and investigators recover evidence from mobile devices such as iPhones and iPods and from Android devices, and it enables the recovery of data from LinkedIn, Twitter, Facebook and many other sources of critical evidence.

Cases can be won or lost on user data, on deleted call logs, SMS messages and other often overlooked sources of data.

AccessData  is presenting a webinar called Using MPE+ for Smart Device Application Analysis on 5 March at 11am CST. You can register for this event here.

There is a list of all forthcoming AccessData webinars here.

One of the more encouraging trends during 2012 was the growing focus on getting to the root of the data problem instead of merely addressing eDiscovery / eDisclosure problems as they arose.

This in turn brings a focus on the value of data in parallel with the perception that it is simply a source of compliance and eDiscovery risk. Deleting unnecessary data in a defensible way addresses both of these issues.

This is the subject of a webinar to be given today, 14 February, at 4:00 PM Central European Time. The participants are John Payton, Legal Counsel for Phillips International and Johannes Scholtes, Chief Strategy Officer at ZyLAB.

There is more information and a registration page here.

The eDiscovery software and services company formerly known as First Advantage Litigation Consulting is now called Consilio, the culmination of a year of acquisition, growth, senior appointments, technology developments and brand presence. There is more information about the change of name here.

The company has seen a much expanded presence in Europe and Hong Kong as well as in the US. The acquisition last year of multilingual review company DLR Legal took the company into an area of activity which (as I have said constantly in the last year) represents the future of eDiscovery review.

Technology developments have included an emphasis on the workflow associated with audio, bringing that growing data source into the company’s proprietary software Global RPM alongside more traditional data forms.  We have seen a new web site, Blog and Twitter presence.  A new name and brand is a logical extension of this very visible growth.

Consilio’s CEO Andy Macdonald said “The name Consilio highlights the importance of ‘consulting’ from our former name, and reinforces our focus on providing creative, flexible solutions to our client’s global eDiscovery challenges. We believe Consilio best represents who we are and what we believe in – superior project management, broad global reach, problem solving expertise, and a team-based approach to client support”.

Here is Consilio’s eDiscovery page. They do much else besides, and there are links from this page to other technology solutions and consulting services.

This is my third start at writing about the launch of the Nuix information governance platform Luminate. The results of the first two attempts may turn up in due course in an essay on good marketing or on the importance of information governance or, perhaps, both at once. The role of this site is to give short factual accounts of things of interest in eDiscovery / eDisclosure – a subject, verb, object  approach instead of elegantly-turned sentences conveying thoughtful commentary.

So:

Nuix launched Luminate

Perhaps we can add a little detail:

Nuix launched its information governance platform Luminate at LegalTech 2013

It warrants a bit more than that:

Information management software company Nuix launched its new information governance product Luminate at a well-judged and packed event at LegalTech 2013

Last go:

At an event which showed that its marketing skills match its software development skills, information management software company Nuix launched its interesting new information governance application Luminate at an enjoyable and interesting event at LegalTech 2013

That’s more like it.  In less than 13 years, Nuix has moved from being a small forensic software company through eDiscovery software provider and on into the deeper waters of information governance. They have achieved this, not merely by producing solutions which companies want to buy, but by taking a strong lead in promoting thought about the subject and in bringing together those who can articulate useful contributions to the discussions.

The Nuix Luminate web page is here, with a brief description of the four stages of information governance which it helps manage – to understand and prioritise, to analyse and review, to act and enable and to maintain and leverage. The objectives (and Nuix is good at retaining a focus on client objectives) is are to reduce costs, to mitigate risk, to maintain compliance and, not least, to extract value from the data which survives the deletion of irrelevant material.  There are links from this page to more detailed sections about archive search, defensible deletion and intelligent migration.

So much for the product, what about the event? The centrepiece was an engaging talk by Barclay Blair of ViaLumina. Barclay took as a parallel the governance of New York City at the beginning of the Twentieth century. The city, he said, had no budget; this is not the same as having no money – there was no formal means of identifying actual spend, still less prospective expense, or of raising funds against preallocated targets. Things got done, but resources – and opportunities – were wasted.  Proper planning only became possible once data had been collated and turned into management information, including the prediction of future costs. You can deduce for yourself how this parallel works through into companies which have no means of using the data which accumulates with every project and with every day.

Companies may well be able to identify the direct and tangible costs of maintaining servers and software and of employing people to look after them; they might even (though few seem to do this) keep track of the costs associated with giving eDiscovery from the growing volumes of data. What they can never track are the lost opportunities derived from the inability to extract value from such of their data as is actually useful.

Barclay Blair has written a White Paper for Nuix covering  this ground and called The Total Cost of Owning Unstructured Information which introduces new ideas such as Full Cost Accounting for Information, the Information Calorie, and Information Cap and Trade which are designed to help organisations think about and manage their unstructured information.

Nuix has also produced a paper called Reducing the Costs of eDiscovery from Collection to Court which focuses as much on information advantages in litigation as on the usual subject of the avoidance of risk.

 The event itself had as trailers the clever Beans video and Nuix’s inspired move in recruiting Deborah Baron as Chief Marketing Officer. Luminate was not the only new product launched in that week – Nuix 4.2 is out as well. That is an awful lot to bite off in one week. How do you pitch the launch?

It is easy enough to buy the outward trappings of a big launch – take some big space at the top of the Mandarin Oriental Hotel, serve good food and drink, lay on a first-rate speaker, invite the right people and do some clever things with the lighting. Nuix did all that, but without excess, and their secret – and this is extremely difficult  when a company is growing this fast – is to pull off such a big event whilst making your invited guests feel part of the Nuix “family”. That Nuix managed this, is a tribute to Marketing Director Carolyn Betts and her team. There are some photographs here which include one of me with Nuix’s US CEO Mark Chardack.

I am in danger of lapsing back into my riff on the subject of successful marketing which I promised to cover separately. Nuix’s primary secret, obviously, lies in its technology and in its marketing. It lies also, however, in a comment made to me by a Nuix employee during the evening: “I’m really proud to work for this company”, he said. If CEO Eddie Sheehy can maintain that amongst his staff as the company grows yet further, Nuix will continue to succeed.

My recent article Applying science to the validation of technology assisted review attracted a gratifying amount of attention. It was based around a paper called Measuring and Validating the Effectiveness of Relativity Assisted Review by Dr David Grossman, an Adjunct Professor of Computer Science at the Illinois Institute of Technology.

On 28 February, Dr Grossman will take part in a webinar at which attendees will have an interactive opportunity to connect with Dr Grossman in a Q&A focusing on the statistics at work in a computer-assisted review workflow.

Further details and the registration form can be found here.