eDisclosure Information Project

IBM has completed its acquisition of StoredIQ, advancing IBM’s capacity to help clients react to eDiscovery demands, to dispose of information which has outlived its purpose, and to extract value from the information which it keeps. There is a press release here.

Vice President of Industry Solutions Deirdre Paknad is leading the integration of Stored IQ at IBM. She summarised the implications by saying that “With IBM and StoredIQ, organizations can maximize the value of big data and more effectively meet growing legal and privacy duties while disposing of data debris to control both cost and risk.”

Deirdre Paknad was the the originator of the expression “defensible deletion”. I wonder if she was also responsible for “data debris” – one of the more expressive phrases in this industry.

EnCase Enterprise is Guidance Software’s powerful digital investigations platform for security, internal investigations, and electronic discovery in the enterprise. It enables remote search, collection, preservation and analysis of data from servers and workstations anywhere in the corporate network without disrupting operations.

358 new customers took EnCase Enterprise in 2012, an increase of 26% from 2011. Of those new customers, 129 were added in the fourth quarter of 2012. There is a press release here.

You do not have to look far to find the reasons for this. Apart from Guidance Software’s own place in the market and its development record, the corporate world is moving steadily towards the realisation that it quickly becomes expensive to engage external collectors for repeated eDiscovery exercises – and regulatory and other investigations, quite apart from civil litigation claims, bring ever more demands for eDiscovery each year.

It should be relatively easy to track the preservation and collection component of eDiscovery exercises and, once those metrics are assembled, it becomes possible to weigh the cost of outsourced collections against the cost of owning the software to allow this to be done in house. It is clear from Guidance Software’s 2012 success that an increasing number of corporations are doing this calculation and making the decision to bring the function in-house.

The last round of development at FTI Technology was all about the long-awaited Ringtail 8, about predictive coding, about usability and workflow, and about the interrelation between FTI’s software tools and the support and services component combined together as Acuity.

There is an obvious crossover between that and some of the themes identified in a recent report by Ari Kaplan which is discusssed in my article here. The latest round of development ties in with Ari Kaplan’s other findings, with a focus on control and on the cloud.

So far as control is concerned, Ringtail 8.3 is all about the person who runs Ringtail, with centralised case management, improved review workflow and automated QC.  Some of this lies in basic usability points – a single sign-on, and never being more than one step away from anything the administrator needs to do, with just enough information readily available on the status of each case.

The Cloud component lies in a new SaaS provision which lies between the Ringtail on-premise solution and the full-service hosted facility. With this variant, the workflow is similar to the on-premise variant, with collection remaining the clients’ responsibility and data hosted in a separate and logically divided “POD” – Private On Demand – environment with some resources (such as tiffing) available as a shared service. The focus is on speed and performance, with a great deal of work going into speeding up document rendering – necessary once the whole application is embedded inside a browser and removed from the speed of the local machine.

I got my view of all this from FTI’s JR Jenkins, Director of Product Marketing at FTI and a man with the ability (not universal in this industry, I have to say) to focus on the user during a demonstration rather than on the technology for its own sake. JR Jenkins features in two forthcoming web casts from FTI, Ringtail 8.3 Overview on 20 February, with  Principal Product Manager Joel Jacob, and one on 27 February called The Legal Implications of eDiscovery in the Cloud, in the company of David Horrigan of 451 Research and Joel Jacob again. Between them, these two webcasts will bring you up to date both with the FTI’s developments and with the context, as described in Ari Kaplan’s Report, in which the solutions are provided.

Here is a list of webinars to be presented by AccessData over the next few weeks, covering everything from AD Discovery 4.0 and AccessData’s Mobile Phone Examiner MPE+, through Cyber Security, Malware Triage and Enterprise Investigations using AD Enterprise.

The first of these webinars is on February and called Using MPE+ Smart Device Application Analysis. Its registration form is here

In this context, it is worth reminding you about David Horrigan’s useful paper AccessData enters 2013 with a streamlined Summation and mobile moves for e discovery which I wrote about here.

What do you do next, when you have conquered e-mail threading, near-duplicate detection and predictive coding, and wrapped them all together with other analytical tools like Batching in an attractive package called Equivio Zoom? What predictive coding has done for us is shifted the focus back towards the lead litigators and case strategists, and taken their input at the beginning of the exercise where its value is highest. Equivio’s latest software application, Equivio Themes, launched at LegalTech 2013, carries this objective one stage further. Those lawyers who fear that algorithms are supplanting their keen intelligence and hard-won knowledge will be pleased to see them restored to their proper place.

CEO Amir Milo opened the launch by talking about how Equivio plans its future developments. One element is putting oneself in the position of potential users and thinking through what they do and what would help them do it. Another is Equivio’s willingness to experiment, trying out several development ideas and abandoning those which do not fly.

Warwick Sharp, VP of Marketing and Business Development at Equivio, began his explanation with a series of photographs, each illustrating a kind of duality – Felix Baumgartner’s view from his 24 mile high balloon before his jump brought him quickly to feet-on-the-ground detail, and Muhammad Ali floating like a butterfly before stinging like a bee. The objective behind Themes is a kind of hybrid between Google Earth and Wikipedia hyperlinks – a good analogy for an idea which begins with a high-level view and gives you the ability to focus on something specific before going sideways through connections between themes.

The starting point is that documents are not single entities, nor are they merely a collection of potential keywords. Between the two lie themes, and a document may have more than one theme. Equivio’s new application identifies salient themes in a collection, allows the user to build a vocabulary of themes, and applies meaningful labels to them. There is a network of connections between themes, and documents do not have a singular connection causing them to fit neatly into a single cluster. Like Baumgartner, the user can go straight down and quickly then, like Muhammad Ali, look for an opening and go for it – the “transition from vista to gotcha then dig deep and find similar” as Warwick Sharp put it when I spoke to him about Themes.

You can use Equivio Themes at any stage, but it is perhaps best used early on to address the question “what do we have here?” with the resulting ability to make critical decisions early in a case. Because Themes is part of Equivio Zoom, all the other tools for identifying redundant data and for analysis are available in parallel with Themes.

It is important, not just for itself and for Equivio, but for an eDiscovery / eDisclosure approach which maps to my idea about the new shape of law firms and legal departments.  They will have a few very skilled people at the top – lawyers supported by those with data analytical skills – and some juniors. The middle tier will disappear, replaced by technology and by outsourced services. Tools like Equivio Themes and the wider generation of predictive coding tools would be an enabler of something which must necessarily happen anyway as a matter of brute economics. The focus will be on the application of stiletto intelligence to clients’ objectives, and away from merely using big shovels to dig through data.

One of the most acceptable invitations here at LegalTech in New York is to the eDiscovery Institute dinner, to be held again at Becco on Wednesday, January 30th. Becco is the flagship restaurant of chef and producer Lidia Bastianich, host of Lidia’s Italy, an Emmy-nominated television series. This year’s co-host is First Advantage Litigation Consulting.

First Advantage has just appointed Dave Moylan to the new post of Chief Operating Officer “to help lead First Advantage through our next stage of growth” as CEO Andy Macdonald put it. Last year saw considerable expansion for First Advantage, both geographically and in terms of the range of work undertaken, and if there is to be more this year, then a COO is likely to be busy.

There is more information about the appointment here.

It takes two, at least, to develop a set of processes to enable a law firm to manage its clients’ eDiscovery projects cost-effectively and yet to a high quality. The best software will fail in the hands of an inadequate team and the best litigation support team in the world cannot succeed without good software tools. You need both.

It has long been obvious that Squire Sanders know what they are doing with Equivio’s Predictive Coding tool Relevance – I know about this, because I know Director of Practice Support Stephen Goldstein who is an eloquent proponent of the proper use of Equivio’s software. It does not surprise me, therefore, to learn that Squire Sanders  is the winner of  LTN’s Most Innovative Use of Technology in a Law Firm Award for its Intelligent Discovery Process (IDP) approach to eDiscovery.

Equivio’s press release about this award is here and Squire Sanders’ has its own report here. Well done to both.

Now here’s an announcement which stands out in the pre-LegalTech flurry. I already know of at least four or five releases or upgrades which are exciting and interesting and for which I would drop everything to hear about.

I was, however, beginning to mutter to myself about the volume of news coming out as I was trying to pack.  Every time I thought I had reached the bottom of the list, another five turned up, either from Twitter or via those rather plaintive e-mails which come in from PR people offering to introduce me to someone I have known for years, or telling me about a product release I have already written about or inviting me to sit in a darkened room for an hour looking at some me-too software from a company I have never heard of when I could be out talking to people.

At the close of play last night, Nuix sent me a link to their extremely good new video Finding 1 Out of 3 Billion Cans of Beans – something I was very happy to sit up late and write about because it was different and interesting. This evening, Nuix has done it again, with the announcement that they have recruited Deborah Baron as Chief Marketing Officer.

Deborah Baron comes from Autonomy, where she was Vice President, Legal and Compliance, a post which embraced information governance and eDiscovery.  She is someone I have known since my first LegalTech, seven years ago, and is one of the nicest people I know in an industry not short of agreeable people.  In a marketing role, that is as important, to my eye, as Deborah’s years of experience and her service on the EDRM Project Advisory Board and as a member of The Sedona Conference.

I very much look forward to seeing her in her new role at the launch of Nuix Luminate on Monday night.

I have not overlooked the fact that Nuix has also brought out its Version 4.2, with predictive coding amongst other new features – one of those on that list of new product releases which will make waves. I will write about that when I have seen it.

Xerox Litigation Services seems to have had a good 2012, with a 100% increase in client end users and a 60% increase in data under management.

2012 was also the year that Xerox-XLS acquired Lateral Data and its all-in-one Viewpoint eDiscovery platform which, when added to its machine learning-based technology assisted review tool CategoriX, gives clients greater flexibility.  As Xerox points out in a summary headed Xerox Continues Accelerated Growth in eDiscovery Market, clients can opt for fully managed services, install Viewpoint on-premise or leverage Xerox’s Viewpoint IT hosting service for do-it-yourself e-discovery, or deploy Viewpoint on-premise for upstream e-discovery tasks – such as data identification, collection and early case assessment (ECA) – and move hosting and production to the Xerox cloud.

Xerox XLS has now made two senior appointments which should ensure that this growth continues. Robert Hellewell and Bill Mariano both join as Vice Presidents of Business Development with a focus on client relationships and particularly on developing cost-effective and efficient eDiscovery strategies for corporate legal departments and law firms.

The press release about these appointments is here.

You do not need to to think too hard to work out what Recommind’s “EasyUpload” does, even without the full title of the press release Recommind Announces “EasyUpload” For Industry’s First eDiscovery “Ecosystem” Linking In-House Counsel, Outside Counsel and Regulatory Authorities.

EasyUpload brings a cloud-based capability for direct transfer of ESI from a corporation to hosted review. EasyUpload manages the seamless transfer of data from Recommind’s Axcelerate ECA & Collection platform directly into Axcelerate On-Demand, the company’s hosted analysis and review platform with predictive coding.

Corporate counsel can collect data from a range of sources, analyze the documents pre-and post-collection and send the information to Axcelerate On-Demand with no additional processing steps or costs.

Recommind will be showing EasyUpload at LegalTech next week.

One of the most memorable advertising slogans of all time was Beanz Means Heinz, still in use over 40 years after it was devised in a London pub. Simple and memorable, it served to push the Heinz brand ahead of all competition. Great slogans do not work on their own, of course, but they can help turned good quality products into market leaders.

 I doubt very much that eDiscovery and information governance software provider Nuix had the Heinz analogy in mind when it opted to use beans for the theme of a very clever new video which it has just released. In the video, the bean provides an analogy for e-mails. Beans go in cans, cans go in boxes, boxes go on pallets, and pallets go in trucks. It does not take long for a typical employee to produce a truckload of data. Data brings risk and expense, particulalrly as so much of it is ROT – redundant, obsolete and trivial. Removing the ROT does not just diminish risk and expense, but also uncovers value in what it left.

We run out of words, eventually, to convey concepts like this. Information governance and eDiscovery have limited vocabularies, and the thousands of words which are written each year by those of us who are concerned with its problems – and solutions – need support from newer and different media forms.

Nuix is certainly achieved that with this video, simplifying the message and packaging it attractively, with words, pictures, narration and music all calculated to draw you in.

The video is published to coincide with the announcement of  Nuix’s new information governance platform, Nuix Luminate, which we will find out about at its launch in New York on Monday evening. I will be there.

Here is an interesting article  by David Hart QC on the UK Human Rights Blog about how judges form a view on the credibility of witnesses, particularly where there are conflicting accounts of events.

The article is called Judging people – and a case about a Porsche 917 and relates to the judgment of HHJ Simon Brown QC in a case called Piper v Hales. In the best tradition of English judgment writing, Judge Brown looks back to authoritative statements of the law and supplements them with practical assessments of the human factors which confront both a witness and the judge. Most of us would have difficulty describing the events of yesterday, still less those of some years ago, and even without the pressure which comes from unfamiliar surroundings and the significance of one’s Oath to tell the truth.

Judge Brown is well known for asserting the importance of contemporaneous documents as a cross-check against what may be untruthfulness or may be no more than faulty memory. That is a reminder that eDisclosure / eDiscovery is more than merely a project management exercise but aims to uncover evidence.

The point emphasised in this judgment is the implication arising from the requirement (which is relatively new) to produce witness statements as a substitute for oral evidence in chief. That was designed to save costs by abbreviating the time spent taking witness evidence. That is a very judge-led view the of expense, one which elevates court time and judge time over all the other components of preparing a case. Its consequence is that lawyers take infinite pains in advance of the trial to polish their client’s story, often, subconsciously no doubt, substituting an idealised version of events for that which actually happened.

This is not necessarily an accusation either of fabrication or of running up unnecessary costs. It does, however, open the door to both these things and gives the judge an additional problem: he or she must evaluate the credibility of a witness without the benefit of hearing that witness gave the bulk of his or her own evidence. All he has is the lawyers’ idealised version and the challenges to that which emerge on cross-examination. This is fair to neither judge nor witness, quite apart from the fact that the alleged cost savings are only illusory. If there were any saving in costs for those cases which go to trial, there is the significant expense of preparing witness statements for the many more cases which do not. Sure, cases may settle because even the lawyers’ idealised version does not come up to scratch, but it may settle also for the entirely wrong reason that the cost of preparing the statements exceeds the value of the claim.

The judgment is interesting in its own right, quite apart from these points.

I would love to claim the credit for this, but the timing doesn’t quite work. I wrote yesterday à propos the eDiscovery / eDisclosure market that “informed and original comment is a valuable adjunct to the routine but necessary marketing materials of convention” and that “social media interaction is a necessary supplement”, adding that “engaging with others on Twitter” can make a “valuable contribution to serious discussion around the subject”.

Bang on cue, First Advantage Litigation Consulting launches a new blog 24 hours later. In his opening post, Change is Good, Executive Vice President Todd Horst promises information and insights as well as “a two-way conversation” with the readers, with specific reference to LinkedIn and Twitter.

One must assume that this has been in gestation for some time. First Advantage Litigation Consulting has grown at a remarkable pace in the last 12 months, extending both its range of services and its geographical presence.  It is almost exactly a year since I met Todd Horst on his appointment and, looking back, it is clear that his arrival was part of a development phase in which the marketing was to move upwards in step with all the other parts of the business.

There is a new web site with links to blog articles including, at the time of writing, one by Garry Bernstein called Held to Account, which I pointed to when it was published as an extremely useful guide to the recent and pending changes in UK eDisclosure as Practice Direction 31B is followed by the Jackson Reforms of next April.

You don’t need me (or Charles Christian, who wrote in similar terms on 8 January) to urge the use of all available means to engage with customers rather than simply hurl information at them.  First Advantage has plenty you might want to talk to them about and, as Todd Horst points out, their geographical range means that this includes the ability to discuss eDiscovery trends outside the US. It is good to welcome them to the Twitter world where I spend so much of my time. You can find them there as @FirstAdv_eDisc.

Tom W. Olofson, chairman and CEO of Epiq Systems, and Elizabeth M. Braham, Epiq’s EVP-Operations and CFO will participate in William Blair & Company’s Electronic Discovery Summit due take place at the InterContinental New York Barclay Hotel in New York City on Tuesday, January 29. The press release is here.

The Electronic Discovery Summit will feature a combination of presentations and panel discussions from both public and privately-held companies in the electronic discovery sector.

An article on Inside Counsel from Symantec – Clearwell called Like the Great Wall: E-discovery barriers still exist between the U.S. and China summarises succinctly the difficulties faced by those who seek electronic discovery on the US model from China. The key sentence identifying the problem is this one:

Although Chinese companies doing business in the US are technically bound to comply with the Federal Rules of Civil Procedure, this fact will not change Chinese corporate culture.

As the article explains, Chinese privacy and data protection laws, including the very wide definition of “state secrets”, raises issues for US regulatory bodies as well as for parties to civil proceedings under FRCP. If there is to be the “reconciliation” referred to at the end of the article, it can only be achieved by diplomatic means.

It is worth reminding you about Symantec’s useful collection of eDiscovery Passports which describe the basic issues relating to disclosure and data privacy in various countries around the world. At the time of writing, that page includes a featured broadcast with the title eDisclosure v eDiscovery: how disclosure rules in the United Kingdom are affecting organisations around the globe given by Symantec eDiscovery counsel Philip Favro and by me.

I wrote in complimentary terms earlier this year about the Information Governance and eDiscovery Strategy Exchange held in Washington in September. Amongst other things, I pointed to a video made at the event in which sponsors and delegates gave their extremely positive views of what they had seen and heard, and the people whom they had met, at the Exchange.

As a result, the event is to be run next year in San Diego on 6-8 May. The website is here. The page includes links to some resources which are useful and interesting in their own right as well as showing the range of subjects to be covered at the Exchange.

You do not get ahead of the pack by following everyone else, and kCura, makers of the Relativity eDiscovery review application, have never done the same as the others. If you detect a growing interest on my part in video presentations, that is partly because we are seeing some interesting use of that medium and partly because I am slowly getting into it myself.

I did not make it to kCura’s Relativity Fest in Chicago last year, defeated by silly airline schedules which make it impossible to be in two places at once. kCura has now published a set of videos from Relativity Fest which conspicuously fail to follow the rather staid norms of the genre.  The Relativity Fest videos achieve a different objective, emphasising the sense of community (by now a rather large community) which is made up of kCura staff and users.

They show that you can be a heavyweight player in your market but nevertheless enjoy yourselves.  A bean-counter or straight up-and-down marketing professional would want to know exactly what return they were getting on the investment.  kCura is content to have fun and show by implication that it is doing well. I suspect, in any event, that the outlay was fairly small.

There is another example of kCura’s willingness to do things differently in a laid-back interview called Start-up Entrepreneur Andrew Sieja of kCura. There are serious messages in the unconventional style – messages for entrepreneurs everywhere, as well as for those with a specific interest in eDiscovery providers.

I recently attended one of iCONECT’s weekly webinar demos and found it a helpful way to get an introduction to some of the functionality in iCONECT’s XERA review application. Demos run to a timetable which can be found here.

iCONECT’s Advanced Analytics demo is now supported by a white paper which describes the use of a XERA’s Custom Find Similar concept. This allows you to build the “perfect” document” which you can then use to find similar documents across the whole collection.

You can find the a description of the functions and a link to the white paper here.

I recently saw a chart tracing the history of IBM’s acquisition of smaller companies over the years, adding niche expertise to IBM’s already comprehensive set of tools. On its own, the subset of IBM called Information Lifecycle Governance, which is concerned with information governance is so enormous that these acquisitions do not necessarily appear to add bulk. That is not the point, nor does IBM need to buy out competitors to remove them from competition. What they are in a position to do is to jump over long development cycles by acquiring specialist expertise developed elsewhere.

The proposed acquisition of StoredIQ, announced  just before Christmas, is the latest in this pattern. Barry Murphy of eDiscovery Journal writes about it here, identifying two primary reasons why the acquisition makes sense for IBM. One is StoredIQ’s technology for applying policies to data, and undertaking pre-collection analysis of the discovery in place. The other is the need to compete with nimble players like Nuix and Index Engines whose impact on the information governance and defensible deletion markets has been disproportionate to their size.

Barry Murphy draws attention to IBM’s ability to centralise the management of information governance across the enterprise. In larger companies, the acquisition costs of tools like this can only be judged by reference to the very significant savings which can be made once the tools and the policies are in place. The pure management savings, significant as they may be, are the least of it – eDiscovery costs, internal and external, can be enormous, and potentially involve risk to reputation as well; even more importantly (but often overlooked) is the value of actually being able to find the information needed for more positive business purposes.

Barry Murphy observes that “IG maturity is just beginning to grow”. That is true, but it is also right to say that the problems which information governance addresses are growing at a rate which needs urgent attention.  Even without looking beyond the companies named in Barry Murphy’s article – IBM, EMC, Symantec, Nuix, and Index Engines – the scene is set for a competitive market in which corporations have real choices. IBM’s acquisition of StoredIQ makes sure that it stays ahead as the information governance market matures.

Guidance Software, makers of EnCase Enterprise Version 7 and other EnCase forensic collection tools, is giving a webinar on Tuesday 29 January 2:00pm EST with the title Top 10 Tips and Tricks for Internal Investigations.

Intellectual property theft and accounting fraud are but two examples of the kind of investigation which large companies are now required to make with increasing frequency. The evidence must come from a wide range of devices and network assets, and speed as well as reliability are vital.

The 30 minute webinar is given by Tameka Brown, Product Marketing Manager, Guidance Software and Ken Mizota, Product Manager, Guidance Software.

The registration page can be reached from here.

Equivio Zoom is now available in Relativity, allowing Relativity users to access the Zoom functionality without leaving Relativity.

Equivio Zoom brings together all Equivio’s eDiscovery functions – its predictive coding application Relevance and analytics including clustering, near duplicates, e-mail threads and language detection. Its inclusion in the Relativity Ecosystem allows, for example, the “training” stage of the predictive coding application to be performed using the standard Relativity review interface with which many lawyers are now familiar.

One of the questions which arises for prospective users of predictive coding technology concerns timing –  at what stage in the process does one best introduce the refining power of predictive coding? Convention has it that the most appropriate time is as part of the review stage, either to prioritise the material which has survived the first pass review or at a later stage because conventional tools have not reduced the volume enough, leaving too many false positives for economic review.

The Equivio press release includes this sentence:

Zoom can be used for early data assessment as well as significantly reducing review set volumes and enabling prioritised review.

In a sense this is a statement of the obvious, but it is worth drawing attention to the benefits of applying the power of predictive coding as part of that early stage when you are trying to find out how big this problem is.

The new eDisclosure rules due to come into force in the UK in April 2013 will include new obligations, for a wide range of cases, to have informed discussions with opponents and the court about the best (generally meaning the most proportionate) way of managing disclosure. The benefits  of early data assessment are wider than the mere ability to comply with the rules – any commercial assessment of the costs and risks of litigation must include  that same exercise, and the costs of undertaking it must be set against the longer term benefits of early volume reduction and the value of that early input into the decision-making process.

It seems a bit unfair to describe Dean Gonsowski as a “veteran”, as Law Technology News does in an article headed E-Discovery Veteran Leaves Symantec for Recommind. I qualified as a lawyer 15 years before Dean did, so if he is a “veteran”, I wonder what term would be applied to me.

Veteran or not, Dean has been in the eDiscovery market for longer than most. He was eDiscovery counsel at Clearwell when I first met him, and Symantec‘s acquisition of Clearwell brought him into the wider and deeper world of Information Governance. eDiscovery is a vital part of IG, but only a part.

Dean Gonsowski built a good team of legally-qualified writers on eDiscovery. With his own eloquent articles complemented by those of Philip Favro, Matthew Nelson and Allison Walton, Symantec has a team which produces original and generally objective comment on a wide range of eDiscovery issues which, whilst clearly having a marketing purpose, make a valuable contribution to serious discussion around the subject, engaging with others on Twitter as well as writing articles

Symantec – Clearwell is not the only player to have realised that informed and original comment is a valuable adjunct to the routine but necessary marketing materials of convention.  Recommind is, like Symantec, one of the few who appreciates that social media interaction is a necessary supplement to its articles, and that Twitter is wasted if you use it only to advertise that you have written an article.

The model practitioner of this was Howard Sklar, whose articles on compliance and regulatory matters caught my eye before I realised that he was at a provider. Howard has now left Recommind to join the Compliance Investigations team at JP Morgan Chase. As is clear from the LTN article, Dean Gonsowski’s focus is on information governance and in Recommind’s plans for that and for Big Data. I hope he will find time to keep writing about it.

Dean Gonsowski joins Recommind as Associate General Counsel and Head of Customer Engagement. The press release announcing the move is here.

I had the pleasure of doing a webinar on Early Case Assessment last year with George Socha and Tom Gelbmann of Apersee along with Chad Papenfuss of the FTC and Caitlin Murphy of AccessData. The style was relaxed without derogating from the importance of the subject matter, and it was fun to do – and I hope to listen to.

There is a list of Apersee Webinars here, including another one coming up with AccessData on 28 February with the title What Every Legal Department Needs to Know About Litigation Hold.  The webinar description begins: “What does your litigation hold program look like? Is it s well-oiled machine…?”

If the answer is “No” (or perhaps “What litigation hold program?”), this will be an hour well spent. Registration is by a button on the Apersee webinar list.

I have yet to put together my usual list of forthcoming eDiscovery conferences for 2013, but wanted to draw attention again to the Asian Technology Summit being run jointly by ALM, the producers of LegalTech and ILTA, in Hong Kong on 4-5 March.

I mentioned this in my closing article after ILTA’s main US conference last August and am reminded of it partly because I have just bought my air ticket for it and partly because I am about to set off for LegalTech New York.

The combination of ALM and ILTA is a powerful one – they joined forces last year for ILTA Insight in London and are bringing their joint expertise to other initiatives as well. Anyone interested in the crossover between law and technology in the Asia-Pacific region will want to be there.

Short podcasts are proving attractive as a way in which lawyers can get quickly up-to-date with developments and pending developments in electronic disclosure / eDiscovery. I recorded one some time ago with Nigel Murray, managing director of Huron Legal in London, and was reminded of it recently when a solicitor contacted me because she could not find it.

That, as it turned out, was because its URL had changed. It is now to be found here.

It shows that the hits you get on the day of publication are not necessarily the end of the story – an article, recording, whatever, which is either memorable or well-indexed in Google terms has a value which persists.

An article on Law Technology News has the self-explanatory heading Kroll Study Sees Dramatic Drop in eDiscovery sanctions. The point is an important one, because it is sanctions, or the fear of sanctions, for eDiscovery failures which drives so much of the cost. What brings the percentage of  “prominent cases that imposed sanctions on parties” down from 42% to 32% between 2011 and 2012?

Two apparently contradictory explanations are offered:

Parties are being more collaborative…

The number of procedural disputes has increased significantly.

The contradiction is not as great as appears, because both collaboration and procedural disputes follow from early attention to eDiscovery issues. If this often results in agreement, it must just as often result in a disagreement which has to be taken to the court.

Either is better than ex post facto punishment for discovery failures which are attacked down the line when, perhaps, much wasted work has already been done. The answers which emerge from the article are that “eDiscovery is standard practice now”, that “courts are getting down in the mud”, and that technology assisted review is gaining acceptance because of the savings of cost and time which result from its use – “2013 is probably the year that TAR will become mainstream”.

One needs to be careful when drawing attention to an article by another which refers back to oneself, and it is with some diffidence that I refer you to an article called Coughs and Sneezes by Charles Holloway on the Millnet blog which itself quotes something I said.

I justify that, if I need to, on the basis that the thrust of thearticle is about a wider subject – the increasing crossover between developments, or at least thinking, in the US and the UK on the subject of what they call eDiscovery and what we (for some obscure reason) call eDisclosure. The “coughs and sneezes” in Charles’s heading relate to the old adage about America sneezing and the rest of the world catching a cold.

As you will probably have gathered, I see a balanced exchange rather than the one-way traffic which is how US lawyers seem to see things, with their proud boast that “the US is two years ahead of the UK”. I have never seen it like that, except in relation to the technology which has been developed to meet the eDiscovery challenges under the Federal Rules of Civil Procedure, most of which emanates from the US.

I do not seek to undermine this view because we in the UK are in any sense “better”, but because the US model has been an unhelpful one for those of us who seek to encourage UK lawyers into electronic management of litigation documents. As the US discovers the pleasures of proportionality, reconsiders (again) its legal hold and preservation obligations, and thinks about narrowing the scope of “relevance”, so the American model, with all its valuable thinking and experience, becomes a useful example to the rest of us rather than the bogeyman which deters lawyers from even thinking about the subject.

It is quite hard to draw attention to any particular sessions at LegalTech. This is partly because of  the sheer noise which surrounds the event, but partly also because there is work enough in preparing the sessions themselves – the speakers, the content, the slides and the logistics – that there is little time left over for promotion.

Symantec seems to have thrown a lot of resources and talent into promoting awareness about their sessions, with a dedicated web page called eDiscovery Without Limits and even a couple of videos purportedly showing people getting into the right frame of mind for the panel sessions.

We each have our own ways of doing this, of course – I favour a quiet cigarette and a double espresso rather than psyching up in the washrooms, but each to his own. I couldn’t quite follow the plot of the second video, with the chap who feels he can be laid back about today’s deadlines because he is going to LegalTech next week – in my experience, the knowledge that you will be spending next week at the busiest eDiscovery event in the world, with appointments, sessions and dinners from breakfast to midnight, is far from relaxing, and I couldn’t quite see how any of this was going to help the chap who had the deadlines now. Perhaps I missed an episode.

If the videos are short on verisimilitude they certainly show a certain style, and one must applaud anything which attracts attention without just shouting. Oh, and by the way, the panels themselves look good as well.

There has been a wave of senior appointments in the eDiscovery industry.

Guidance Software has appointed Vincent Schiavo as Senior Vice President of Worldwide Sales. Vincent Schiavo’s background is in security software companies and CEO Victor Limongelli says “We’re extremely pleased that he’s bringing his deep expertise in enterprise, channel, federal government, and international sales to Guidance Software at a time when we’re poised for further expansion.”

At the same time, iCONECT has appointed Jeff Bodem as Regional Director for Business Development with responsibility for direct sales initiatives and customer relationships for iCONECT’s network of hosting providers and law firms in the US Midwest and South-east, and internationally. Jeff Bodem was formally Associate Director, Business Development at Navigant Consulting.

Then, as this post was about to be published, Huron Consulting announced the appointment of no fewer than eleven promotions to the role of Managing Director in its Legal, Healthcare, Education and Financial Consulting divisions.

My eDiscovery / eDisclosure eye falls in particular on the appointment of Nathalie Hofman, promoted to Managing Director in Huron Legal. She provides data analytics solutions for e-discovery projects using Huron Legal’s Integrated Analytics offering and has led large, complex document review projects, project management and review facility management.

Ernst & Young and New Zealand-based eDiscovery Consulting are putting on the Managing eDiscovery in New Zealand Conference on 13 February 2013 in Auckland. The keynote speech is to be delivered by His Honour Judge David Harvey who is well known to those of us who  appreciate serious and relevant judicial thinking about the crossover between law and technology.

It crossed my mind to go to this conference – New Zealand is one of the few places whose civil procedure rules require electronic discovery of documents which I have yet to visit.   It now turns out that I must be in the US in the weeks each side of the NZ conference and cannot realistically spend most of the month in aeroplanes. That is a pity – I would like to be there.

As we get closer to the new regime of cost management in UK civil litigation, it may be helpful to re-read the interim report on the cost management pilot published by the Ministry of justice in February 2012.

The purpose of the pilot was to examine the benefits and disadvantages of cost management and to consider how the process might be improved for the benefit of court users.

The samples used in the report are smaller than one would hope, but it forms a useful introduction to those facing up to the new state of things.

The b-Discovery 6th annual party takes place at Arena NYC in New York on 29 January at 9.00pm. This year’s party is raising money for Harvard Centre, an early intervention agency for children with special needs.

It is sponsored by some well-known players in the eDiscovery market. The registration page is here.

The next Tweeting Legals Tweetup is at the Knights Templar in Chancery Lane on 11 February at 6:30 PM.

There is more information and the opportunity to sign up here.

I moderated a webinar yesterday, organised by Legal IQ and with speakers from First Advantage Litigation Consulting. Our subject was Managing Internal Investigations.

One of the speakers was Drew Macaulay, a director of First Advantage in London. Drew specialises in the practical application of technology in multi-jurisdictional matters, advising on technical and workflow aspects of investigations and litigation. The other was Mike Flanagan, General Counsel for First Advantage Litigation Consulting. Mike is a former partner at Gibson Dunn & Crutcher where he led a number of internal investigations on behalf of clients.

Between us, we covered the all-important planning stage, the involvement of relevant staff from the company, and the reasons why a company and its lawyers might choose to involve an eDiscovery / eDisclosure service provider – partly to make sure that the job is done properly, and partly to leave the lawyers free to focus on the legal and strategic aspects.

The webinar is available for download here.

For many years, Nigel Murray, managing director of Huron Legal in London, has organised a Commonwealth Brunch in New York on the Sunday before LegalTech. The form is that Nigel books some tables at a convenient venue and welcomes any LegalTech delegate from a Commonwealth country. We pay our own way. The timing is civilised, as are the people who attend.

If you qualify and are interested, please contact Nigel at nmurray@huronconsultinggroup.co.uk

My photograph shows last year’s Brunch.

The respected eDJ Group has published its 2013 eDiscovery Trend Predictions. The report itself is available only to subscribers or on payment of a fee, but Barry Murphy has provided a helpful summary of it.

The headline topics include the spread of predictive coding, the growing interest in information governance projects, and the need to collect and preserve an ever-wider range of information types from social media, web content, mobile device content and structured data.

The article refers specifically to the need to find the right people for predictive coding. Barry Murphy says:

The other thing to watch for with TAR and predictive coding is the race to build up the most human resources expertise.  This will be especially important for managed services providers, who will differentiate on the level of human experience with predictive coding as well as the portfolio of technologies used.

This applies equally to information governance, a function requiring a wide range of skills, including eDiscovery expertise. Where are we going to find the right people?

Mary Mack and Johannes Scholtes of ZyLAB are giving a webinar on Wednesday 9 January at 12:00 PM EST.

It is called The Dark Side of Big Data which, as the trailer for the webinar says, is an “enormous volume of structured and unstructured data that comes from everywhere, is owned by no one and is too big to be handled by one computer”. It houses “unmanageable requirements for eDiscovery, governance, compliance, data and privacy protection”.

ZyLAB’s product set and consultancy services cover the full range of information-related corporate activities from information governance through to production for eDiscovery purposes. The defensible disposal of legacy data is the place to start, and this webinar suggests guidelines and best practices for getting rid of the stuff which you do not need any more and whose continued existence poses threats which are the “dark side” in the webinar’s title.

The registration page is here.

The Lawyer reports that Singapore’s new chief justice, Sundaresh Menon, is investigating the possibility of establishing the Singapore International Commercial Court.

A working group is being set up under Justice V K Rajah and the senior minister of state law, Indranee Rajah to investigate  this extension of Singapore’s role as a hub for international dispute resolution. I sat next to Justice Rajah at a dinner 18 months or so ago and found him eloquent on the subject of Singapore’s wider role, not just in the provision of dispute resolution services, but in legal education.

Singapore law, he told me, is “British law uncorrupted by the EU”. An even bigger selling point, in my view, is the efficiency which Singapore brings to the provision of the infrastructure and environment to support legal services, and the way it has recently set about encouraging international law firms to expand in Singapore.

A 2012 report by the UK Ministry of Justice drew attention to the threat posed to London as a dispute resolution centre by other jurisdictions. Singapore was one of those mentioned and, in my view, the only one with the credibility to carry it off.

The Society for Computers and Law has invited Mr Justice Akenhead to speak under the title Judges and Technology, Friends and Foes. This talk was to have been given last year but has been held over to 16 January 2013.

Even before the rule changes due in April 2013, case managing judges assumed a heavy burden in relation to the overlap between technology and the management or hearing of cases. eDisclosure, case management, and the increasingly varied types of electronic evidence all feature as part of a judge’s everyday business.

From 1 April 2013, the existing duties of judicial active management will be supplemented by new responsibilities to make decisions not only about the scope of disclosure but about the tools and techniques to be used to achieve it. If the primary burden falls on the lawyers to explain all these things, the burden falls on judges to make appropriate and proportionate decisions.

Sir Robert Akenhead’s talk will cover, among other things, the perils of inadequate (and over-detailed) eDisclosure, the role of technology in effective case management, and best practice in technical disputes generally.

The venue is the offices of SNR Denton at One Fleet Place, London EC4M 7RA. The talk starts at 6:30pm and the details can be found here.

I have been recording a group of short podcasts with Millnet in anticipation of the new case management and eDisclosure rules coming into force in April 2013.

The first of these podcasts, recorded with Charles Holloway of Millnet, covered the existing position under the eDisclosure Practice Direction 31B and looked ahead to the new rules coming into effect in April 2013. These increase the range of cases for which parties must discuss the sources and the tools and techniques to be used to deal with eDisclosure, with provision also for active involvement by the judge in making decisions about these things.

The second podcast relates to the no less important area of cost management and budgets which will also come into force on 1 April. Many firms are already well used to preparing budgets for their own clients; now they will be required to prepare budgets for scrutiny by opponents and by the court, at least in relation to costs which they expect to recover if they win.

These budgets will necessarily include, in many cases, the costs of eDisclosure. Lawyers are expected to say what tools and techniques they intend to use, what the cost will be and to explain why the outlay is proportionate to the case. That will require them to approach companies like Millnet for early input into their own decision-making.

These forecasts are deliberately short – this one is only 13 minutes long – making it an easy way to get up to date with the pending changes.

Professor Richard Susskind emphasises the diverse
range of methods which are available to lawyers and which ought to be considered when approaching any project as part of his suggestion that:

Lawyers must ask themselves what elements of their current workload could be undertaken more quickly, more cheaply, more efficiently, or to a higher quality using different and new methods of working.

Document review is an immensely labour-intensive task. Courts, as well as clients, are increasingly pressing lawyers to consider different ways of reducing the burden of eDiscovery / eDisclosure amongst other “tools and techniques” (as the UK Practice Direction 31B puts it) which are available to them.

One of the most cost-effective ways of achieving this objective is offshore document review, something which is the subject of several misconceptions. In this podcast called Dispelling Myths of Offshore Document Review, Josh Hogue and Tamir Kriegel of Huron Legal consider some of the myths and discuss the benefits of sending document hosting review work offshore.

Internal investigations raise much the same implications in any jurisdiction, and most of these apply equally to litigation and to regulatory investigations.

First Advantage Litigation Consulting helps lawyers to manage internal investigations in many countries around the world and has considerable expertise in the implications which arise from them, and the processes needed to manage them efficiently.

This is the subject of a webinar on January called From the Trenches: Managing Internal Investigations. The host is Mike Flanagan, General Counsel for First Advantage Litigation Consulting and the presenters are Drew Macaulay of First Advantage in London, and me.

Amongst other things we will cover:

• Defining the scope of the investigation
• Structuring the work plan
• Using technology to control costs
•  Dealing with complications such as privilege, data privacy, and multiple languages
•  Maintaining credibility with constituents

The live broadcast will take place at 11:00 AM EST (New York) / 15:00 GMT (London) / 17:00 CET (Paris) / 23:00 HKT (Hong Kong) / 01:00 EST (Sydney). The webinar will subsequently be available on demand.

The registration page can be found here.

eDiscovery Journal, part of the respected eDJ Group, has produced a new report, a predictive coding case study called How One Enterprise Dipped a Toe Into Predictive Coding.

The report itself is available to subscribers, but you may be interested in Barry Murphy’s covering article. This emphasises that technology-assisted review / predictive coding is available in many forms, ranging from outright purchase for firms and companies who might then use it for every matter through to matter-by-matter contracts with managed services companies.

As Barry Murphy says, 2013 will be the year in which anecdotal evidence will emerge of TAR usage and the development of best practices. We are well past the early adopter phase, but as these stories and case studies roll out from those who make use of predictive coding and other forms of technology-assisted review, those not yet brave enough to try ought perhaps to go and see a couple of predictive coding tools so that you can understand and interpret the emerging case studies. You can ask providers to give you a web demo which will allow you to see what the fuss is about without having to leave the office.

Whether or not technology-assisted review is right for your cases, you will learn at least not be taken by surprise when your opponent announces his intention of using it.

There is nothing particularly glamorous or exciting about archiving. It lacks the cut and thrust of courtroom battles over eDiscovery / eDisclosure, and perhaps seems mundane when compared with the new frontier of predictive coding, that place where technology, jurisprudence and the business of being a lawyer meet.

 An article by Bob Spurzem, Senior Product Marketing Manager for EMC’s Backup Recovery Systems, draws attention to the role played by e-mail archive in recent stories about General Petraeus and about the battle between Apple and Samsung.

Its role seems set to grow, as growing concern about security breaches and eDiscovery costs forces the realisation that leaving the problem until a discovery / disclosure request is made is not an adequate business strategy.

The eDiscovery / eDisclosure world is perhaps beginning to realise, at last, that the root of the problem lies off the left-hand side of the EDRM (Electronic Discovery Reference Model) – we heard a lot about the “move to the left” three or four years ago, and email archive repositories became more usual then. We are in a second phase now, one in which an archive is more than just a cheaper place to dump old data.

EMC’s roots lie in storage, but its business stretches across across the EDRM. If one were to compare eDiscovery / eDisclosure to a house, an archive is the foundation. You have to keep patching the walls and roof, but sooner rather than later you need to be sure that the foundations are secure.

Guidance Software has released EnCase Portable Version 4, with ease of use as the primary consideration.

EnCase Portable runs on a 5 GB USB drive, which enables untrained users easily to run a pre-configured data search and collection task using an EnCase Evidence File. Once collection is done, the processing and analysis can be undertaken using EnCase Forensic – Portable is integrated with EnCase Forensic Version 7.05 and its interface allows investigators to review and analyse the data which has been collected as well.

The EDRM – the Electronic Discovery Reference Model – is that ubiquitous diagram invented by George Socha and Tom Gelbmann which illustrates the stages of a typical electronic discovery / disclosure process. The website is also full of information designed to help those engaged in eDiscovery, including a glossary of terms, suggested standards, and a mass of material on metrics, search and testing, as well as another well-known model the Information Governance Reference Model or IGRM.

EDRM now brings us a similar model for computer assisted review, the Computer Assisted Review Reference Model (CARRM). Computer Assisted Review is, of course, but one of the names given to this type of technology algorithms, processes and workflows; others include Technology Assisted Review and Predictive Coding. Whilst I favour Predictive Coding, there is something soothing about an arrangement of letters which, used as an acronym rather than just a set of letters, makes us think of that wartime notice – Keep CARRM and Carry On.

For immediate purposes, I do no more than point you to it.

No illustrative model can properly show the proportions of time and cost spent on any one stage – as George Socha is fond of pointing out, if review was shown at its full size in the EDRM relative to other stages, you would need a very large screen or piece of paper to show them all. Much the same is true of the early stages of a technology assisted review exercise as shown in the new CARRM.

I saw a tweet yesterday which included a quotation from Abraham Lincoln which is new to me: “Give me six hours to chop down a tree and I will spend four of them sharpening the axe”. This idea provides a good parallel for computer-assisted review, with the hard work lying in the initial stages of designing a protocol and educating the reviewer. These are legal and human activities – anyone who thinks that you throw data into a black box and go off for tea while waiting for the results will undoubtedly get it wrong.

Incidentally, the EDRM site also includes a link to the Grossman-Cormack TAR Glossary of Technology Assisted Review

One of the most interesting acquisitions of 2012 came when Xerox bought Lateral Data, bringing the latter’s behind-the-firewall software Viewpoint into the same stable as Xerox’s hosted service OmniX and its technology assisted review tool CategoriX.

As I wrote at the time of the acquisition, this diverse stable allows Xerox to offer a wider range of services to its existing clients, not all of whom need the hosted power of OmniX for every case. It also opened new markets to Xerox, partly because of Lateral Data’s client base and qualities but because of the potential for cross-selling the hosted solution. Many cases start small and grow bigger, and these can be moved from one environment to the other.

Xerox has not sat on its hands following the acquisition and has quickly to take Viewpoint to the cloud, eliminating the capital and operational IT costs associated with supporting and maintaining their Viewpoint infrastructure where the needs of the business or a particular project require it. The press release is here.

Xerox clients now have every option open to them, from self hosted, self-administered installations of Viewpoint, through cloud-based, self-administered installations and on to the fully-hosted model of Omnix.

The press release, let me point out, includes this sentence:

Organizations will also benefit from hosted proof of concepts free of charge, which can be set up and accessed within 24 hours.

As pressure mounts on lawyers who need to know what they would do when the case comes in, a company offering three varied concepts seems a sensible way to prepare.

An article by David Pelligrinelli, President of AFX Search, is headed Sound advice: How targeting voice, phone and other audio records can bolster e-discovery. Sound advice it is indeed.

Many litigation software platforms now include software and functionality aimed at capturing discoverable, and potentially useful, information from phone and other audio records. I was speaking to a London litigation lawyer last week who told of hours spent trawling phone records with a result, in the form of a single telephone call, which turned the case. This is real world stuff, not just the hype of software vendors.

David Pelligrinelli’s article provides a helpful introduction to the subject.

I have been re-tweeting iCONECT’s announcements of its analytics and other webinars for some time without realising that this is a weekly event, with a webinar on some aspect of XERA taking place every Wednesday at 1.00pm New York Time. Last week’s was on Advanced Analytics.

iCONECT publishes a list of future events with hyperlinks to the registration pages. This seems to me to be an extremely good way of making people aware of the functionality in software applications, especially for those who, for whatever reason, are reluctant to set up a dedicated session – that can follow, of course, if you like what you see at the public demonstration.

 Symantec is organising a Twitter Chat on Tuesday 18 December at 10:00am PT. It will focus on SharePoint and will discuss the reasons why organisations need need SharePoint governance and on the role of archiving and eDiscovery in governance plans.

To join the conversation, use the hash tag #IGChat.

I said in an earlier post that I would keep writing about the parachute jump made by Huron Legal’s Nigel Murray in aid of Help for Heroes until he had raised at least £2,500. He passed that milestone almost immediately and his total now stands at just short of £3,000. Can we get him to £3,500 by Christmas?

His Donations page is here.

According to information management technology provider Nuix, approximately 80% of data kept by organisations is unstructured. Companies are better at producing data than at searching and managing it, and the consequences extend beyond the obligations to identify relevant material for eDiscovery / eDisclosure purposes.

Nuix specialises in this, with parallel processing capabilities designed from the ground up to manage very large volumes of data in complex storage repositories. This has implications beyond eDiscovery and into the proactive management of data as part of an information governance strategy, aimed at uncovering business value as well as for the purely reactive business of giving discovery.

The US patent office has recognised that Nuix has core functions which are unique and is due to issue a patent in respect of those functions.

The press release includes a list of current customer use cases which emphasise the information governance value of the Nuix tools as well as the discovery implications. It also includes a link to a brochure which supports the claims made by Nuix in respect of its technology.

Computers and Law, the website of the Society for Computers and Law, has published a series of predictions for the future, as it does at the end of every year.

My own predictions went in late, as usual, and I try not to read those published before I dictate so that mine are not influenced by what other people think – not that one expects a wide divergence of views on things like the new case management rules in the UK, on the rise of predictive coding and managed review, and on increasing “judicial activism”.

I have included a paragraph about cross-border eDiscovery, mainly because of the interesting possibility that we will see changes in US attitudes to foreign data protection and privacy rules and that the narrower scope of discovery required by for this purpose may bleed into purely domestic US discovery – by 2053, anyway.

You can find links to the other SCL predictions in the margin to my own. Between them, they gave a pretty balanced view as to what we might expect to have happened by this time next year.

Metropolitan Corporate Counsel has provided a summary of a white paper written by me and by Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software, about the eDiscovery implications of the Cloud.

The white paper provides a practical discussion of cloud computing and related issues specific to eDiscovery, as well as technical issues about data management.

I cannot improve on MCC’s own summary:

Cloud services can offer cost and efficiency benefits, but they also can heighten commercial risks with respect to satisfying e-discovery obligations because some of the responsibility is delegated to an outside party. Formalizing the necessary precautions in agreements with cloud providers is essential, and this process represents an additional opportunity to re-examine precautions in all organizational contexts.

In other words, like so many aspects of eDiscovery / eDisclosure, cost, saving of cost and other benefits must be balanced against risk, and policies and processes must be devised to maximise benefits and contain risk.

Robert Childress founded the Masters Conference, running it in tandem with his role at Wave Software. He has now become the President and CEO of the Masters Conference, able to devote his full attention to the further development of this significant player in the provision of practical CLE education.

The press release, Masters Conference names founder Robert Childress as CEO is here.

The Masters Conference has grown considerably, not only by the expansion of its flagship event in Washington each October, but by other events, conferences, membership and publications across the US. It will be interesting to see how much wider its net will spread with Robert Childress devoting his apparently infinite energies and talents to it.

A Legal Week article Fixed-fee billing favoured by 50% of corporates, LW research finds reports on research which shows that fixed-fee billing arrangements are favoured by 50% of corporate clients. The target here is not cut-price lawyering, although all clients want to spend less this year than they did last, but the ability to budget. Eversheds partner Stephen Hopkins is quoted in the article as saying:

Most GC’s do not want cheap; they want quality and efficiency, but most of all they want certainty”.

Where have we heard this before? It is one of Lord Justice Jackson’s key findings in his report on litigation costs that lack of certainty and transparency in litigation is a major deterrent, something which discourages clients from engaging in litigation at all if they could help.

“But litigation is different” cry the lawyers “and is simply not susceptible to fixed fee billing”. It is certainly right to say that litigation has the potential for the unexpected, whether that lies in the raising of new and unexpected issues, in aggressive (or incompetent) conduct by opposing parties, or in some unforeseen aspect of eDisclosure – the 50GB which turns into 2TB, the five custodians which become 10 custodians, the unexpected presence of encrypted or foreign language files, or in the emergence of a protracted procedural dispute which had not been foreseen. All this militates against fixed fee arrangements.

But it is fixed fee arrangements, according to the Legal Week article, which make clients happy and therefore more likely to send a firm its next instructions. That involves, perhaps, the willingness of the lawyers to share risk to some extent with their clients. Above all, it involves the ability to assess costs, and possible deviations from anticipated costs, by reference to past experience.

There is no other major project (and litigation can become a major project) into which commercial clients enter without some idea of the cost. That is what they expect when they plan to construct a building, to make a film, to acquire a company or to do whatever it is that type of business requires. Why should litigation be different?

I have yet to write up my impressions of the Lawtech Europe Congress held in Prague in November. It was one of a series of back-to-back conferences in which I took part in widely-separated jurisdictions during November, and its lessons will keep whilst I catch up with other things.

My report, when it comes, will be in very positive terms. Meanwhile, the organisers’ post event press release is here, including links to the sponsors, the speakers, a video and some photographs.

Jonathan Fowler, Director of Forensics at First Advantage Litigation Consulting and David Shonka, Principal Deputy General Counsel at the Federal Trade Commission are amongst the speakers at a two hour webinar on Tuesday 11 December at 12.00pm ET.

The title of the webinar, which is sponsored by First Advantage Litigation Consulting, is Have Data, Will Travel. Not from THIS Country and the speakers will provide an overview of the privacy laws of China, Germany, Switzerland, and the UK and how these laws affect companies undertaking eDiscovery exercises or responding to regulatory investigations which originated in the US.

The other speakers are B. Jay Yelton, Chair, Electronic Discovery + Records Management Section at Miller Canfield, David L. Stanton, Partner at Pillsbury Winthrop Shaw Pittman LLP, Johnny Lee, Managing Director – Forensic, Investigative & Dispute Services, Grant Thornton LLP and Nicole B. Boehler, Partner, CBM International Lawyers LLP.

The speakers will cover, amongst other things:

• The US Government Agency response to multi-national matters
• Recent case examples
• eDiscovery Trends
• Highlights on the complexity of German privacy laws
• Tips on reducing risk and cost in multi-national matters.

It is rare to find all these jurisdictions covered in a single webinar, and by speakers with this level of practical experience. It should be well worth listening to.

In a webinar on 11 December called Significantly Reduce Enterprise Investigative Costs with Remote Forensics, Tameka Brown, Product Marketing Manager at Guidance Software, will explain how an organization can reduce enterprise investigative costs using remote forensics. With remote forensics, organisations have the power to search, collect, preserve, analyze, and report on the vast amounts of data within their network from a central location.

This webinar will cover:

• Cost & time savings
• How to improve productivity and effectiveness
• How to eliminate down time

This webinar is geared toward information technology, human resource, and legal professionals tasked with managing and facilitating employee investigations.

The registration page is here.

Many of those who read this blog, whether in-house or from law firms, are not necessarily going to understand the technical minutiae which lie behind Guidance Software’s latest announcement, headed Guidance Software Debuts Fastest Forensic Bridge  about its faster than ever Tableau® T35u USB 3.0 forensic SATA/IDE bridge for forensic imaging in both lab and field environments.

If the lawyers don’t get the details, that hardly matters – lawyers instruct forensic experts to deal with deeply technical things in the same way as clients instructed lawyers. The word which matters is “fastest”.

If the forensic experts can collect data faster then the lawyers can begin more quickly to examine the data and start making tactical and strategic decisions about its use. A faster process is, generally speaking, also a cheaper one because less time is spent collecting the data and work fewer hours generally means lower costs.

The T35u is available now.

AccessData has been touring the world (almost literally) with its Roadshow about the all-new Summation. Those who missed the Roadshow can catch up with a live webinar to be given on 11 December a 12.00pm Mountain Standard Time.

This 60 minute presentation will cover…

• Overview of Summation Express and Summation Pro.

• Administrative and litigation support aspects of Summation.

• Data processing, early case assessment and final review features.

• Attorney and paralegal end-user review functionality.

• Plus a short introduction to Mobile Phone Examiner Plus for E-Discovery.

The registration page is here.

kCura has released Version 7.5 of Relativity with the integration of processing as the primary (but by no means the only) major enhancement. It has also brought Relativity Assisted Review – kCura’s predictive coding tool – into the Global Applications Catalogue, allowing users to switch easily between a manual and a computer-assisted process. Analytics, usability and infrastructure have all been improved.

That is a rather rather dry summary of the features which appear in the 7.5 Release Overview. To get the real flavour of this release, watch the short video on the Overview page in which CEO Andrew Sieja and Vice President of Sales and Marketing Nick Robertson talk about the release. This is the way to get people interested in your application – I do not mean just “sell” it, but illustrate your new baby by talking about it enthusiastically with the help of crisp, clear graphics and straightforward descriptions.

I had intended to quote some of the things which Andrew and Nick say on the video, but this kind of thing doesn’t really work in print – watch the video as a model for how a company can convey that it is truly proud of its product and committed to making it better for their users. Their secret is to anchor their enthusiasm in hard-edged descriptions and illustrations of the new tools.

In the UK from next April, lawyers will be required to show that they have identified proportionate ways of dealing with disclosure. That must inevitably mean that they must look at computer applications (part of the “tools and techniques” which the Practice Direction refers to) and to do so with usability as well as functionality in mind. I am studiedly neutral as between the players in this market and, in any event, a range of factors go into to the decision-making process which will vary from firm to firm and from case to case, so a good video won’t swing a purchasing decision. What I will say, however, is that this way of describing litigation applications has the potential to help lawyers understand what this kind of software is for and how it can be used.

Whilst on the subject of Relativity, the website contains a library of materials designed to help users and administrators. The page Updates to Relativity Assisted Review in 7.5 is an example of the kind of guidance on the advice@kCura blog. You may care to browse the menu options – Technical Support, Documentation, Tutorials, Training etc to get some idea of the support which kCura offers to its users.

I did a series of short podcasts earlier this year with Millnet’s James Moeskops, concentrating on predictive coding.

We have now moved on to a new series, with a focus on the new disclosure rules due to take effect in April 2013. Here is a link to the first of those podcasts recorded this week with Charles Holloway of Millnet and available on the Millnet iPadio Channel. We aim to keep them short, with a target time of 10 minutes each. Others will follow shortly.

However important eDiscovery may be, it is but one of the challenges facing large companies in respect of their data. For many sectors, compliance with regulatory obligations and industry standards is not merely desirable but compulsory, a prerequisite for doing business at all.

The pharmaceuticals industry is an obvious example, and Sheila Mackay of Xerox Litigation Services has written an interesting article called How to Make E-Discovery Compliance Part of Your Business as Usual on the website Pharmaceutical Compliance Monitor.

The article includes six practical tips:

Build a team

Create a culture of information governance

Develop a litigation readiness plan

Educate employees

Invest in technology

Document everything

Following these steps, Sheila Mackay says, allows companies to integrate eDiscovery processes into their existing business practices, enabling them to meet eDiscovery challenges promptly, efficiently and accurately.

Managed review is one of my pet subjects at the moment, in the sense that the growing number of leading providers offering managed review services is a development which exceeds the power of technology alone to change the way this type of legal work is performed. To me it is a copybook example of Richard Susskind’s warning that:

Lawyers must ask themselves what elements of their current workload could be undertaken more quickly, more cheaply, more efficiently, or to a higher quality using different and new methods of working.

Metropolitan Corporate Counsel has interviewed Foster Gibbons, Senior Director of Managed Review for Xerox Litigation Services, the result appearing in an article called Integrating Managed Review With Proven E-Discovery Capabilities, and the key to this lies in that headline – in integrating managed review with eDiscovery capabilities.

Foster Gibbons talks through what this means for Xerox’s clients, with managed review as a natural extension of Xerox’s well-established technology capabilities. The emphasis is on working with counsel to design processes and then to manage the project. As Foster Gibbons says, the skills needed for managed review are much the same as those arising in the other elements of an eDiscovery process.

Following close behind the expansion of its document review services in London and elsewhere, First Advantage Litigation Consulting has now expanded its managed review services in Washington D.C., expanding its expert multilingual support for eDiscovery and managed review worldwide.

There is more information about FADV’s managed review services here.

What the clients want, says CEO Andy McDonald, is “global expertise and local support”. He says “We’ve listened and responded by expanding our review centers in the U.S., Europe and Asia and opening our data center in Zurich. We are firmly committed to supporting our clients wherever they need us.”

To illustrate the latter point, First Advantage has also expanded its presence in Hong Kong with the appointment of Paul Taylor, an FADV veteran, as Managing Director – I met up with hm when I was in Hong Kong recently. The growth areas there are in compliance, arbitration and government investigations, all areas in which Paul Taylor personally, and FADV as a company, have wide experience.

Nuix prides itself on its ability to process virtually unlimited quantities of unstructured data really fast. As CEO Eddie Sheehy says in this interview, there is overlap between Nuix’s products and solutions for forensic investigation, eDiscovery and information governance.

One of the features which attracts users – not least regulatory organisations – is the ability to extract what Eddie Sheehy calls “intelligence items” such as e-mail addresses, phone numbers, credit card numbers etc and to cross-reference them across a very wide range of data sources.

One of the features of an eDiscovery exercise of this kind is that the investigator does not necessarily know what he or she is looking for. The expression about needles and haystacks is barely adequate to describe the relationship between such intelligence items and the sometimes vast pools of data in which they sit.

Nuix is good at building connections between apparently disparate items. That is interesting enough in the context of an investigation; where it really gets interesting is when that same power is applied to information governance, and specifically the identification of documents and data which have characteristics qualifying them either to be kept or to be disposed of.

Incidentally, if you have not yet seen the new Nuix website, have a look at it, as much for the photographs as for the content. Here is an example, showing Eddie Sheehy exercising his powers over bits and bytes.

Equivio Zoom is an application which pulls together the products for which Equivio has long been well known – e-mail threading, near-duplicate detection and its predictive coding tool Equivio Relevance. Zoom pulls it all together with new analytical and reporting tools in a single attractive package.

I saw it and wrote about it some months ago, and it does not surprise me to find a series of Zoom partner announcements spilling out of the company. The current edition of Equivio Update includes two partner links which I have mentioned before, with Catalyst and with SFL Data, and adds D4 and NightOwl Discovery.

The update also includes a link to an article called The Evolution of E-Discovery Economics by Daniel Garrie on Metropolitan Corporate Counsel which explains how law firms and corporate counsel can implement an eDiscovery or litigation readiness program using predictive coding – doing the job properly whilst making or saving money by “cutting out the middleman vendors and reducing expenses for the client”.

Lastly, there is a link to a webcast with Epiq Systems which I have referred to elsewhere. Called Technology Assisted Review 101, this serves as a refresher course in technology assisted review basics.

For some years now, I have moderated a conference in London jointly with Browning Marean, Senior Counsel at DLA Piper US and George Socha of Socha Consulting. That same team is bringing a new conference to London on 17 and 18 April next year, part of a series which (without me) takes place also in five US cities during the year.

For the moment I do no more than mention it and draw your attention to the website. I will have more to say about this early next year.

Symantec is presenting a webinar on Thursday 6 December (that is, TODAY) at 10:00 am – 11:00 am PST with the title Ignorance is Not Bliss – Why SMBs Need to Defend Against Cyber Attacks.

The vast majority of small businesses have no formal security policies in place or plans for responding to an incident or breach. The webinar covers the latest cyber threats and the steps which companies can take to keep their businesses and employees safe. Subjects to be covered include:

• Emerging trends in security threats targeting SMBs, and some projections of what to look for in 2013.
• Best practices SMBs can take to secure their employees and information.
• How Symantec can help keep you protected against the latest threats without expensive hardware, software, or IT staff.

The registration page is here.