Notes from Hong Kong – talking about world eDiscovery

This is a continuation of a series of mini-posts following my recent visit to Hong Kong.

Browning Marean of DLA Piper US is one of the few US lawyers who understands the difference between eDiscovery messages which travel and those which do not, and who is able to discriminate between messages of universal application, messages which apply only within the US, and messages which represent the necessary compromises which must be made where US discovery meets more restrictive rules elsewhere.

His secret lies partly in the comparative observations derived from his own travels, but more significantly from the fact that he bothers to read and understand local rules and culture before opining on the merits of the American way.  It is always a pleasure to speak alongside Browning for this reason, and I was delighted to be asked to talk to litigation lawyers at DLA Piper’s Hong Kong office and, via video link, to people in DLA’s Shanghai, Beijing and Singapore offices.

I called my talk eDiscovery Round the World, and covered recent pending rule changes in the UK (the eDisclosure Practice Direction and Electronic Documents Questionnaire, the new Rule 31.5 and costs management) and in Australia, Singapore and New Zealand, all of whom have made changes this year.

Some messages are universal – competence, cooperation, proportionality, and the growing trend towards proactive information governance as a substitute for mere reaction to events.

DLA Piper knows more about international eDiscovery than most – it has, for example, recently published a useful booklet called Data Protection Laws of the World. It was a privilege to be asked to speak to so many of its lawyers, and to hear something of the issues faced by all who practice in the region.

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Judge Peck comes out fighting and denies Da Silva Moore recusal motion

US Magistrate Judge Andrew Peck yesterday denied the Da Silva Moore plaintiffs’ recusal motion in robust terms. The S.D.N.Y. Blog pulls out the best bits from the ruling and provides a link to it.

The opinion is measured, analytical and, to my eyes, unanswerable. Most commentators (that is, all bar one, apparently) viewed the plaintiffs’ tactics with a mixture of bewilderment and contempt. Judge Peck keeps his cool, facing down each allegation in turn, and leaving any objective reader with a clear picture of plaintiffs (or, rather, their lawyers – one wonders what the plaintiffs themselves think of all this) who, disliking the outcome of the course they had agreed to, thought they would have a go at displacing the judge in the hope of finding themselves a more amenable one.

This expensive and extravagant side-show has nothing to do with the merits of predictive coding, nothing to do with the issues in dispute and nothing to do with the “just, speedy and inexpensive” requirements of Rule 1 of the Federal Rules of Civil Procedure. Judge Peck’s important messages about proportionality, about cooperation, and about the duty of parties and the court to find the best way of managing cases, have all been drowned. As I have asked before, can anyone remember what this case is actually about? Continue reading

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First Advantage to run anti-corruption workshop and sponsors Young Lawyers 2012

At first sight, there is no obvious connection between the two topics referred to in my heading, yet both have an eDisclosure / eDiscovery connection. Much of the interest in the subject – my interest anyway – lies in the very wide range of subjects which are touched by eDiscovery. They include court rules, technology, anti-corruption, regulatory and other investigations, and modern trends like social media and the cloud, as well as the principles of search, analysis, and review.

They extend also to business practice and to careers – how do law firms adapt to changing times and competing business models, and how do lawyers, particularly young ones, future-proof their careers by extending their range?

The London office of First Advantage Litigation Consulting is picking off two of these subjects, corruption and careers, in the next few days.

Anti-corruption, compliance and regulation are the subjects of a workshop called Anti-Corruption Internal Investigations: An Insider’s Guide on How to Set Up, Manage and Conduct Thorough Internal Investigations into Corruption and Bribery Allegations at the C5 Anti-Corruption event which taking place between 25 and 28 June 2012 at The Bloomsbury Hotel, London. Continue reading

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Hobs Legal Docs adds Competition work to its eDisclosure skill-set

I mentioned a while back that London legal services provider Hobs Legal Docs had taken on Patrick Rowan from Ernst & Young as sales director. The press release is here but, as I often do with press releases, I have waited for the opportunity to speak to Patrick Rowan before writing about the appointment.

Regulatory work in general, and Competition work in particular, requires a degree of urgent attention to the documents in a way which makes most litigation look leisurely. Whether the trigger is a dawn raid or an enquiring letter, a company and its lawyers have very little time to establish what the position is and to make informed decisions about it.  Since the Akzo Nobel decision on in-house privilege, the imperative is to involve outside lawyers immediately.

Companies like Hobs are well used to collecting data in a hurry, processing it and getting it quickly under the lawyers’ eyes – it is often a revelation to the lawyers that they can start looking at key documents almost immediately, without waiting for full processing to take place. The technology is the same – see Hobs partner list for the companies whose technology might be used. There are obvious differences – a company facing a regulatory investigation does not have the same options to settle or to choose the issues on which to focus. The lawyers from whom the instructions come are also, it seems, a slightly different breed to commercial litigators, probably as a result of the permanent need to react quickly and decisively. Continue reading

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Notes from Hong Kong – Introduction

I am back from Hong Kong, where I took part in InnoXcell’s Asia eDiscovery Exchange and spent three days listening as much as talking, with the aim of finding out as much as possible about eDiscovery in the region. It seems an odd way to put it perhaps – as I write this, a few days later, I am en route to the north-east, one of Britain’s far-flung regions. Would I talk in that context of “finding out as much as possible about eDiscovery in the region”? Probably not, although competition between the countries of the AsiaPac region reflects a now-dead (apparently) competition which used to exist between the commercial centres of Britain. Do you remember when Leeds, Birmingham and Bristol all vied to be the place where London-trained lawyers wanted to work, competing on cost, talent and quality to attract London work? The talent is still there, but the inter-regional competitive zeal seems to have gone. It ain’t like that in AsiaPac.

You have to be damned careful about sweeping generalisations based on regional differences, of course.  There is infinite scope for being misunderstood in this sensitive age if, in trying to reduce one’s conclusions to the smallest space, one appears to be comparing cultural norms to the apparent detriment of one of them. I will do it anyway, and say that my few days in Hong Kong showed better than anything that the US is on its own in eDiscovery terms. The rest of us play by different rules, both literally and metaphorically, and we are at last beginning to see a falling off in the US missionary zeal which was evident when I first went East. Instead of trying to impose the word of FRCP on an unwilling audience at the point of a sword labelled “sanctions”, US speakers are beginning to recognise that some compromise is needed and that the cultural norms of other races and regions require a different approach.

The most evident shift appears from a focus on benefits rather than threats. Perhaps being in a city which is patently foreign forces a re-evaluation of the vocabulary. There may be the dawning of an acceptance that the US may actually have something to learn from other jurisdictions, but even if that degree of self-awareness is missing, it has become clear that marketing of the (generally excellent) software and services requires more than just hurling US concepts at an audience which does not accept their premises. This should prompt a re-evaluation of the marketing language, which is no bad thing anyway. Sod the functions – what are the benefits? OK, I hear you (up to here) on risks, but have you got something positive which I can add to my budget case?

I guess the West Was Won from fear of Native Americans and wolves, not the hope of Chevrolets and iPads. It somehow infects the cultural message.

I am going to spread my notes from Hong Kong across multiple posts, partly because no-one reads very long articles, partly to avoid the backlog of other things which will build up if I do it all in one go, and partly because they involve discrete subjects, even if there some consistent themes running through them.

My photograph shows InnoXcell’s Jeffrey Teh opening the show. I have spoken at every one of Jeffrey’s conferences since InnoXcell began, and they get better every time.

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Epiq Systems to host UK–US judicial discussion in London on technology-assisted review

Epiq Systems have invited Senior Master Steven Whitaker and US Magistrate Judge Andrew Peck to take part in a panel discussion about the use of technology-assisted review in litigation. The panel, to be moderated by Epiq’s Laura Kibbe, will take place from 8:15am to 10.00am on Wednesday 27 June at 60 Cannon Street, London, EC4N 6NP.  Breakfast and refreshments will be provided.

There is no charge for attending this interesting-looking event but it is necessary to register. You can do that by clicking here or by sending an e-mail to epiqteam@epiqsystems.co.uk

Master Whitaker and Judge Peck have long been eloquent and thoughtful advocates of the proper use of technology to reduce the time and expense of litigation. In addition to their assiduous and much-welcomed presence on the technology panels, and through their articles, both have delivered decisions which emphasise the importance of reducing the volumes of document for review, Master Whitaker in Goodale v the Ministry of Justice and Judge Peck in Da Silva Moore v Publicis Groupe and MSL Group.

What has a US judge to say which is of value to a London audience? The days are long gone when American judges would come and lecture us about preservation duties under the Federal Rules of Civil Procedure. Judge Peck, amongst others, has strong messages about proportionality and cooperation which are the more forceful for coming from a jurisdiction in which neither of these qualities  have been much in evidence hitherto. Judge Peck’s Opinion in Da Silva Moore caught the headlines because of its approval of predictive coding; that, however, was servant to the fundamental principles of FRCP Rule 1 – “the just, speedy and inexpensive” conduct of cases. That equates to our overriding objective.

Master Whitaker takes the same line – his Goodale judgment is primarily about managing the case to reduce unnecessary cost, and  technology came into it as an obvious way to achieve this objective.

We are lucky to have these two judges brought to our doorstep. Register now to get a place.

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A post-Hong Kong holding post

I spent last week in Hong Kong at the Asia eDiscovery Exchange 2012 organised by InnoXcell.  A lot of good stuff came out of that conference and it will take me a while to turn my draft report into a readable blog post.

I have missed (or, at least, have not been able to pass on) a number of interesting articles which came by whilst I was away.  eDisclosure / eDiscovery continues to generate interesting news and comment, much of which crosses jurisdictional divides. I will try and link to some of it during this week.

Tomorrow, I go to Leeds for another eDisclosure seminar in the series organised by MBL Seminars. These are three-hour sessions whose primary focus is the use of technology in eDisclosure. The first part covers the relevant rules and some of the cases, with the rest showing how a combination of technology and adroit use of the discretionary components in the rules can give you the upper hand at case management conferences.

On Wednesday, I am doing a session in London with Nigel Murray of Huron Legal and HHJ Simon Brown QC. The latter has just published a further article in the New Law Journal about costs management and disclosure. The first one is here. Together they might act as a primer for anyone dealing with even modest amounts of electronic documents in civil litigation.

Also this week, I am doing the third in a series of podcasts about predictive coding recorded with James Moeskops of MillnetThe last one included contributions from Dominic Lacey and Jamie Tanner of Eversheds is about a case in which predictive coding was used. The one coming up this week will attempt to look into the future of predictive coding in the UK context.

Lastly, I am due to record a podcast with Philip Favro of Symantec. The aim is to give a brief explanation of the key differences between US eDiscovery and eDisclosure in the UK. There is the dawning realisation in the US that the rest of the common-law world has rather different views on discovery, going well beyond the stupid 1999 UK decision to give the  subject a new name in the hope thereby of improving it.  it is good to have the opportunity to explain the merits of the approaches taken in non-US jurisdictions.

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ZyLAB webinar – Bridging the gap between corporations and law firms

I recorded a webinar with ZyLAB’s Johannes Scholtes last week in which we revisited a topic we have covered before – the gap which exists between companies and their lawyers on the subject of information governance and the anticipation of eDiscovery.

I took my opening theme, in part, from an article by Tom Kilroy, GC at Misys, and in part from a recent conversation with in-house counsel at a European bank. Tom Kilroy’s article, about which I wrote when it was published, was called Big 4 a Reason, and praised the Big 4 for their ability, at least relative to their law firm rivals, to “think very carefully about how to engage with and develop their current and future clients.” The implication, which is what I explored with the bank lawyer, was that the lawyers seemed to think largely in terms of transactions which, when complete, allowed them to send a bill, close the file and wait for the next instructions. There might be a series of transactions, but each began as if it had nothing to do with the previous one.

That both expands on what Tom Kilroy actually said and (as I made clear in opening) is a generalisation which does not apply to all, but the bank in-houser recognised the idea – and immediately made it clear that he was, on the whole, quite glad to see the back of the lawyers and their fees until he needed them again. I don’t think it was just the fees which counted here – the Big 4 don’t work for free either – but was symptomatic of a perception that many lawyers do not have much to add to the client’s business until the next problem arose requiring their specialist skills.

However weak that may be as a generalisation, it certainly seems true of eDiscovery, where lawyers do not seem to have much value to bring to pre-emptive discussions – not just how can we (all) do better next time?, but what steps can be taken to minimise the trouble, risk and expense of an eDiscovery exercise for litigation, regulatory or investigate purposes?

The ZyLAB webinar outlines some of the problems which arise on both sides and offers some suggestions for bridging that gap, including having a better understanding of what technology solutions exist to manage eDiscovery problems. The mere solution of problems is only a part of it of course – better managed information helps uncover value within data stores.

The webinar is available for download and the registration page is here.

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Investing to avoid the mere imputation of sanctionable eDiscovery conduct

Jim Shook, Director in EMC’s eDiscovery and Compliance Field Practice, has published an article on the Kazeon blog called Activating Your Information Management Shield whose central part considers two cases where legal hold sanctions were threatened; both cases involved the deletion of data which ought to have been retained. One case turned, effectively, on the fact that the party had systems in place to preserve data even if they had not been effective in this case, and no bad faith was shown; the other is as yet undecided, but includes the complicating element that the legal hold in question was not the only reason why the data should have been preserved – there were professional and ethical reasons why it should have been kept anyway.

The main takeaway from Jim Shook’s article, for me anyway, comes at the end, and applies even outside the rigourous (is that a nice neutral word for it?) context of US litigation. Jim puts it this way:

We all know that litigation holds are difficult to implement and are almost never perfect.  Sometimes something bad actually does occur – a custodian is inadvertently omitted, a handful of emails are lost.  But more often, nothing bad happens at all.  Still, even in those cases it can be difficult (and time-consuming and expensive) to fight off the other side’s claim that something “must have been lost.”  A good information management policy, with tools and education to enable it, can go a long way towards showing good faith and protecting your organization from harm.

The risk management exercise, in other words, involves more than just the prospect of actually being punished for eDiscovery defects, whether that involves US-style sanctions or an indemnity costs order as one might get in the UK. What does it cost to resist the imputation, and what wider implications might ensue? Continue reading

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An eDiscovery, social media and libertarian miscellany

I am in Hong Kong, cursing that I left behind the USB thingie required by my wireless headset so that I must type everything by hand. I am here for InnoXcell’s Asia eDiscovery 2012 Exchange, and specifically for panels on social media and on the convergence of eDiscovery and information governance. This is an odds-and-ends post, a collection of loose ends of the type which gather when you flit from place to place and subject to subject, as I have been doing lately, including a bit about my own experiments with social media, some reflections on liberty derived from what I am reading and from the Jubilee – oh, and a little about eDiscovery.

Recent Google Plus posts and the breadth of the subject-matter

The variety of topics encompassed by the broad heading “eDiscovery” appears from recent posts here on my blog and on Google Plus. The most recent blog posts cover costs management, early data assessment, metrics, social media, predictive coding, the duty of competence in eDiscovery, and US extradition demands, amongst other things. The range of related subjects does not end there: my Google Plus posts have the following headings:

Inside Counsel: Three companies talk about their social media governance policies

Successful Claimant loses costs in excess of budget: Henry v News Group Newspapers Ltd

The effect of Google’s Search Plus Your World on Facebook Traffic – or not

eDiscovery Institute Announces Second Annual Leadership Summit – October 17-19

Dominic Regan takes the MoJ to task over plans for an employer’s liability portal

InnoXcell Hong Kong: The convergence of eDiscovery and information governance

InnoXcell Webinar: The Social Media Governance Imperative

Some views of and from the Red Rock and a few panel pictures

Rob Robinson’s rolling update of the Da Silva Moore court documents

In between, there have been a couple of webinars, a paper or two, a three-hour UK eDisclosure seminar and planning calls for conferences yet to come. There has, in addition, been rather too much opportunity to observe that the poor project management skills shown in many eDiscovery exercises are as nothing compared with the incompetence, indolence, stupidity and sheer contempt for others shown by the sort of people who manage public transport, immigration queues and airport processes. Hong Kong provides an honourable exception under all these headings. Continue reading

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New Zealand judge gives Megaupload founder the right to disclosure before extradition hearing

A New Zealand court has decided that Megauploads’ Kim Dotcom and others are entitled to disclosure of at least some documents to help them prepare their cases against the US government’s demand for their extradition. There is some irony in the fact that the decision opens with a reference to a House of Lords judgment: if the US had wanted to extradite Mr Dotcom from the UK they would have been able simply to help themselves without any substantive hearing, on the merits or otherwise,  as a by-product of Tony Blair’s simpering grovelling to President Bush in 2003.

Start by looking the article Kim Dotcom wins right to FBI files on the New Zealand technology website stuff.co.nz. Dotcom is charged with multiple copyright offences, and the FBI want him to stand trial in the US. Judge David Harvey’s decision, which you will find here, will interest readers of this blog mainly for its focus, towards the end, on Dotcom’s right to disclosure of documents relevant to the claims against him. Continue reading

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Costs management: Mr Justice Ramsay describes why it is necessary

I wrote recently about the coming regime of costs management in civil litigation – see Costs management moves closer in England and Wales.

We now have a more authoritative reference document. Mr Justice Ramsay delivered a speech a few days later with the heading Costs management: a necessary part of the management of litigation, available on the Judiciary website. The speech provides as good a summary as you could want of the reasons for managing costs from an early stage in a case, of the practical implications, and of the likely consequences of the new regime.
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Early Data Assessment – a webinar with AccessData and Apersee

I took part in a webinar yesterday with Caitlin Murphy of AccessData, Tom Gelbmann and George Socha of Apersee, and Chad Papenfuss of the Federal Trade Commission. Our subject was Early Data Assessment and the title we gave to it was Early and Often – the word “often” implying that assessment is a continuing process which goes on throughout a case.

We began with the steps which can be taken to work your way into the problem, perhaps starting with the primary document sources of the main players and using their documents as a way of establishing the issues and facts, the holes which must be filled and the potential costs of moving out to a wider set of documents should that be required.

The rise of social media is a growing problem, alongside its many benefits. However many terabytes you have of email and Word files, there is plenty of scope for a blog post, Facebook entry or tweet to become the turning document in a commercial case as well as in divorce and personal injury whence most examples have come hitherto.

The courts are becoming increasingly involved in the assessment of the data implications – the SDNY Model Order for Complex Cases and the UK Electronic Documents Questionnaire both aim to give the court an early feel for the scale of the data as a precondition for understanding what course in proportionate.

Mention of the SDNY Model order took us into the area of lawyer competence – the lawyers are required to certify that they understand the implications of the sources or have engaged the services of someone who does. One cannot really define “competence” beyond reciting the rules governing lawyer capability. The definition must necessarily include “knowing the limits of your knowledge”. A good starting-point is a check-list, perhaps using the UK Questionnaire as a starting-point, to make sure that whole areas – such a social media – do not get overlooked entirely.

In answer to a question from the audience, we considered the circumstances in which forensic collection would be necessary or justified. One often-overlooked element is the relative continuity of personnel within the company and within its chosen provider of forensic services – would the person doing the collection still be available when the time came to prove what was done?

We ended with a look at costs and the ways of controlling them. It would be a good start to know what you spent last year, because how else can you measure the value of any investment aimed at reducing those costs?

This was enjoyable to do in such company. We were joined by 244 live listeners, a very satisfactory audience.

The webinar is available on demand on the Apersee site.

Posted in AccessData, Costs, Costs Management, Discovery, Early Case Assessment, Early Data Assessment, eDisclosure, eDiscovery, Electronic disclosure | Tagged , , | Leave a comment

Predictive coding case study with Millnet and Eversheds

I wrote recently about a short podcast about predictive coding which I made with James Moeskops of Millnet.  We have now done another one, this time with Dominic Lacey and Jamie Tanner of Eversheds.

The context was provided by an exercise which Millnet did with Eversheds in a Commercial Court matter for which predictive coding was seen as the most practical and cost-effective way of dealing with very large volumes of documents. It was one of the exercises which I wrote about in my article Two predictive coding case studies emphasise time and cost savings. The motivation to use predictive coding software (Equivio Relevance in this case), came, as Dominic Lacey explains, from the very high number of false positives which were returned by keyword searches.

Eversheds is one of the more forward-thinking firms in the use of technology for litigation and for other matters where large document volumes are encountered, and the interview, which I moderated, was a good way of hearing about it from the horse’s mouth.

Short podcasts like this – it runs for only 19 minutes – provide a painless way of absorbing news and information. You can link to the podcast from Millnet’s page about it here. That links also to a transcript of the interview and to Millnet’s own article about the case study.

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Hobs Legal Docs takes Relativity and makes a senior appointment

London-based litigation and document management provider Hobs Legal Docs has made two significant announcements whilst I have been on my travels.

The first was the appointment of Patrick Rowan as Sales Director and as a Board Director of Hobs Legal Docs Ltd. Patrick comes from Ernst & Young whence he brings skills and experience in eDiscovery and eDisclosure as it arises in Competition and Regulatory matters, as well as experience in forensics data analytics. The Hobs press release about Patrick Rowan’s appointment is here.

I have yet to meet up or speak with Patrick since his appointment, as I like to do when appointments are made at this level, and hope to remedy that soon.

The other news from Hobs is that it has been appointed a Relativity Premium Hosting Partner, as you can see from the Hobs press release here and the kCura one here.  I was asked at a seminar this week if I would point the delegates to providers of software and services.  I gave my usual answer which is that the list of logos of those who support the eDisclosure Information Project is a good place to start, whilst adding in the interests of objectivity that there are other players in the market. Providers like Hobs bring a wide range of choices, together with the consultative skills and experience to help point users towards the right solution for their particular needs.

As you can see from Hobs Partners page, there is some overlap between their partners and my sponsors, as Relativity joins Westlaw CaseLogistix, Guidance Software, Clearwell and Equivio amongst others on the list.

It is worth reminding you that Hobs has a Manchester office and that all these applications, together with Hobs’ ability to manage paper disclosure in tandem with electronic disclosure, are available from there. I was in Manchester with Terry Harrison of Hobs in January (see eDisclosure seminar in Manchester with Hobs Legal Docs) and hope to be back there, this time on my own, later in the year. My next trip north is to Leeds on 13 June for MBL Seminars, something I will write about separately.

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Costs Management moves closer in England and Wales

I have already drawn attention to an article by His Honour Judge Simon Brown QC in the New Law Journal called Costs management & docketed judges: are you ready for the big bang next year? which describes what is to be expected by parties to civil proceedings in respect of costs budgets. The takeaway quotation is:

The days of putting in a bill at the end of a case based on a multiple of billable hours x by £x per hour and expecting to be paid are over.

I come back to the subject in case you missed a practical example of costs budgeting in action, with a result which reflects the warnings given by Judge Brown. The case is Henry v News Group Newspapers Ltd (Rev 1) [2012] EWHC 90218 (Costs) (16 May 2012) and the title of a Legal Futures article says it all: Senior Costs Judge disallows budget overrun in landmark costs management ruling.

That article links in turn to an explanation by Andy Ellis, the costs lawyer who acted for NGN. Again, its title tells you all you need to know – Actual – Budget = Catastrophe.

As the Senior Costs Judge explained in his judgment, the case was dealt with under the Defamation Proceedings Costs Management Scheme.

Last in this set of links is one to a Daily Telegraph article headed Hourly billing for lawyers should end, says top judge which reports a speech by Lord Neuberger whose message is clear enough. The central point is reported thus:

[Lord Neuberger said] “Hourly billing at best leads to inefficient practices, at worst it rewards and incentivises inefficiency.”

He said it penalises those who are able to bring cases to a close quickly, adding: “It also penalises the able, those with greater professional knowledge and skill, as they will tend to work at a more efficient rate.

“In other words, hourly billing fails to reward the diligent, the efficient and the able: its focus on the cost of time, a truly movable feast, simply does not reflect the value of work.”

He said: “In practical terms, any business which bases its charges simply on costs does not deserve to succeed, or even, some might say, to survive.

Lord Woolf said something similar in his report which gave rise to the 1999 Civil Procedure Rules. This time, the nettle is to be grasped.

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Metrics, Social Media, Magistrates, Monkeys and Mitigating Risk at CEIC 2012 in Las Vegas

I am not above inventing a headline whose connection with the subject-matter is less important than its potential for attracting readers curious to know what the article has got to do with eDiscovery. In this case, the headline is an honest, if partial, summary of what lies below: metrics are the key to eDiscovery decision-making; social media is the fastest-growing source of potentially discoverable data; Magistrate Judges turn up to share their wisdom with us; monkeys appear twice, once as part of the question “who are you talking to?” and once in an echo of a recent post of mine about cross-border discovery and blocking statutes; risk mitigation is the theme which binds them all together.

I have been at Guidance Software’s CEIC 2012, a pool of civilised learning and meeting in the cultural and topographical deserts of Nevada. There have been more than 1,500 attendees here from 43 countries, with 53 exhibitors and 118 information sessions. I have been here since Saturday; the show has now closed and I am stuck here until tomorrow, giving me the first opportunity to write anything since I arrived. The rest of the time has been filled with preparing and giving my own sessions, attending excellent presentations given by others, and with parties, dinners and useful conversations by the pool.

Continue reading

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Something for everyone at IQPC’s Information Governance and eDisclosure Summit

If you want a rounded account of IQPC’s successful Information Governance and eDisclosure Summit in London this week, this is not the place to find it. I was involved in five events over the three days and spent most of the rest of the time talking to providers, judges, lawyers and in-house eDisclosure people from law firms and their clients, attending very few sessions as a result.

The nearest you will get to a narrative account can be found by looking for the #infoGovSummit hashtag on Twitter and particularly the tweets of Recommind @Recommind,  Barclays’ Matt Ward @_Matthew_Ward_,  and the ever-reliable Andrew Haslam @AndrewHaslam (winner of the event’s tweeting prize).

FTI Technology Panel

It began for me with a workshop led by Craig Earnshaw of FTI Technology at 8:30am on Monday morning. Our subject was When Volumes get Large: How to Keep Control of Your eDisclosure, which was kicked off with talks from Glen Greenland and Ian Smith of FTI and then taken up by a panel comprising Matthew Davis of Hogan Lovells, Jean-Bernard Schmid of the Geneva Public Prosecutor’s Office and me. No eDiscovery exercise, whether for civil litigation, or for an investigation for regulatory, criminal or internal purposes, ever ends up smaller than anticipated.  What resources, of people and technology, do you bring to bear in a way which remains proportionate whilst scaling up to meet new developments?  The subject was deliberately broad, and swept up a range of challenges from pure volume to time constraints to privacy and all the other wrinkles which are recurring features of exercises which are increasingly global in nature.

The most memorable moment had nothing to do with the primary subject – or perhaps it did. Craig Earnshaw asked for the most extreme example of geographical remoteness encountered by the panel. No-one sought to compete with Matt Davis’s reference to Hogan Lovells’ office in Outer Mongolia, neatly emphasising that there are no geographical limits any more.

Dinner with Nuix

A dinner hosted by Nuix on Monday night gave me another example of projects which turn out bigger than anticipated, as well as an object-lesson in the value of actually reading one’s e-mails.   Continue reading

Posted in Andrew Haslam, Discovery, eDisclosure, eDiscovery, Electronic disclosure, First Advantage, FTI Technology, IQPC, KCura, Nuix, Recommind, Social Media | Leave a comment

Conference topics indicate the important eDiscovery and eDisclosure themes

That part of my life which involves speaking has four elements – preparation, travel, delivery and reporting. The month of May always has a full diary of events, and this year has more than usual. Of the four elements, the only one which is optional is the reporting, and it is that which I must abbreviate here. I can make a virtue out of that by summarising the themes which run through my current batch of events, reckoning that the subjects which recur at events are those which are seen as important.

I am writing this from the top floor of the Wynne / Encore hotel in Las Vegas where I have been speaking at AccessData’s User Conference. Below me lies the vast complex of casinos, conference rooms, shops, swimming pools and catering facilities which are the standard mix in this city.  To my left, and  temptingly close, lies McCarran airport with toy aeroplanes taking off and landing. But for the iniquitous cost of today’s flights, I would be there now, getting ready to go home less than 24 hours after arriving here (I could not come earlier because of ILTA Insight in London). As it is, I am stuck here until tomorrow – though as offices go, this one is hard to beat. Away to my right lies the Red Rock Hotel; I will be there in a few days time for Guidance Software’s CEIC. It would be a great deal cheaper, and much more productive in writing terms, to stay here for the intervening few days, but IQPC’s big Information Governance and eDisclosure Summit takes place in London next week and I must be back for that. When CEIC is over, I must get back for a CPD  talk which I am giving in London.

What themes recur through these events? Continue reading

Posted in AccessData, CEIC, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Epiq Systems, FTI Technology, Guidance Software, iCONECT, IQPC, KPMG, Nuix | Leave a comment

Getting it right second time

Although I made it clear in my article Scattershot innuendo and muck that I was indifferent to the outcome of the arguments on the merits in Da Silva Moore, that is no excuse for substituting the word “Plaintiffs” for “Defendants” in the heading of an article whose entire purpose was to draw attention to the way in which one party is getting all the airtime in the commentary on the case.

Perhaps I was subconsciously proving my own point.  Perhaps the most sensible conclusion is that 4.00am on a Saturday morning is not the best time to think up article headings.

I am not too bothered about being defensive on this, but if I were, I would observe that it has taken until today for a sharp-eyed reader to spot my error. The tenor of the article was clear enough.

Changing the titles of articles is a pain, because they go through into the page names, and correcting them fouls up the SEO and breaks third-party links. It seemed, nevertheless, the right thing to do on this occasion.

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Google Plus eDiscovery and eDisclosure posts to 5 May

It has been a month since I published my last list of articles published on Google Plus and said that I would not be doing any more of them.

I speedily repented of that as the stream of interesting articles about eDiscovery and eDisclosure kept rolling by. I know of no other medium which combines each of use with reasonably good SEO. One compelling reason for continuing is that these lists, which are inevitably keyword rich, themelves index very well and if part of the aim is to spread information about eDiscovery / eDisclosure and its players, then I cannot ignore “findability”.

Here they are, in reverse order. There are more comprehensive indexes of recent additions to both the Google Plus and the Blog posts here.

Orangutans which look like Boris Johnson

Privacy compliance a requirement as Skadden Arps chooses Relativity

Planning the journey from Londinium to Eburacum

Nuix publishes Defensible Deletion report by Katey Wood of ESG

The Dominic Regan podcast for IQPC’s London Summit

Recommind’s Howard Sklar on computer-assisted review for the CPS

Technology-Assisted Review – technical experts to talk to the science

Ontario Case on relevance and privilege – L’Abbé v Allen-Vanguard

The drought reaches Oxford

A guide to logical fallacies

Apersee webinar with AccessData – Early and Often – 30 May

Empire Discovery adds OrcaTec to iCONECT’s Xera and kCura’s Relativity

Epiq Systems Q1 2012 results show 133% eDiscovery growth

kCura recognises RenewData as a Relativity Best in Service Partner

Craig Ball – a Bill of Rights for E-Discovery

LawTechCamp London June 29

Nuix donates $44,000 from Proof Finder sales to Room to Read

ILTA Insight in London – Beyond the Traditional Law Firm IT – 8 & 9 May

Symantec’s Matt Nelson summarises Judge Carter’s decision upholding Judge Peck’s predictive coding Opinion

UK government promises to improve airport queue delays

CY4OR’s Keith Cottenden writes about the scale and nature of cyber crime

Video: Bill “Sauce Boss” Wharton entertains (and how) at the iCONECT Global Summit on Litigation Technology

Law Firms take note: Nikon takes Symantec’s Clearwell eDiscovery Platform in house

Google Apps Vault Brings Information Governance to Google Apps

Guidance Software launches EnCase Forensic 7.03 for Faster, More Efficient Investigations

Predictive Coding – its Providers and its Synonyms from Rob Robinson

ASIC signs Three-Year Contract with Nuix for Electronic Investigation Software

CY4OR seeks Champions for Sales and Marketing Roles in the North-West

A window into eDiscovery disputes – Day 2 of the Kleen Products case

Judge Waxse sets an evidential hearing on hearing of obviously inadequate search

Are you a Data Controller or a Data Processor? It might be helpful to know

Ten years of eDiscovery mergers, acquisitions and investments

FCPA expert Michael Volkov move to “entrepreneurial” LeClairRyan

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Conor Crowley’s guidance on the Duty of Competence in e-Discovery applies beyond the US

Bloomberg BNA has published an article by Conor Crowley which looks at both the origins and the new developments in the lawyers’ Duty of Competence in eDiscovery. It is a US article about US rules and codes of conduct. The duties apply, in their essentials, however, anywhere else and whether or not local rules impose them.

He refers, for example, to a proosed amendment to the ABA’s Model Rules of Professional Conduct which reads:

‘‘To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.’

Anyone care to argue with that as a proposition for a litigation lawyer in 2012?

How about the certification which counsel must sign when making the Joint Electronic Discovery Submission in the S.D.N.Y Pilot Programme for complex cases?

(2) Competence. Counsel certify that they are sufficiently knowledgeable in matters relating to their clients’ techno- logical systems to discuss competently issues relating to electronic discovery, or have involved someone competent to address these issues on their behalf.

I don’t think you have to be participating the Pilot, or in S.D.N.Y or in the US or in a very big case for that to be at the least sensible as a starting point for giving proper advice to a client.

A good article and well worth reading.

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Scattershot innuendo and muck – the Defendants respond to the recusal motion in Da Silva Moore

So far as I can see, only two articles have been published so far to report on the defendant’s Memorandum of Law in response to the plaintiff’s motion for the recusal of Judge Peck in Da Silva Moore.  That response was filed on 30 April and it is now the dawn of 5 May. K&L Gates have published a brief reference to it, with links to the Response itself and its exhibits. Legal Technology News has published a straight-up-and-down account under the heading Defendants in ‘Da Silva Moore’ Oppose Motion to Recuse Judge. That article has been re-tweeted a bit, but the rest is silence.

Where is everyone, I wonder? Every move by the plaintiffs has been passed on immediately in blog posts, often with lurid headlines, and usually at a speed which may be a credit to their authors’ reaction times. It takes me quite a long time to produce a balanced summary of things like this; perhaps it’s the balance bit which takes the time.  It feels a little like watching a football match from which one team’s supporters have been barred.

Here by way of reminder is what I said about the plaintiffs Memorandum of Law in my article Peck predictive coding Opinion upheld: does anyone remember what this case is actually about?

It is, no doubt, a model of its kind, but it reads to English eyes as though a Daily Mail features writer has tried to parody the thesis of an aspirant lecturer at a New University. I must have nodded off when reading it, because I entirely missed the footnote which cites an article by me as evidence of the assertion that the defendants’ lawyer was pleased with the outcome of the last hearing.  (Let’s just go back over that: a party to US proceedings, seeking to overturn an order, feels the need to show that the other side were pleased with the order, and relies on an article by an English commentator to “prove” that unsurprising assertion. WTF, as we say in our understated English way)

Some of the articles which we have seen have consisted largely of extracts cut-and-pasted uncritically from the Plaintiffs’ court documents, topped off, as I have said, with an eye-catching headline. Let’s try the same approach here (I already have my eye-catching headline): Continue reading

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Barrister video on the 7 Deadly Sins of witness statements

I am inevitably interested in the ways in which ideas and information are passed to and by lawyers, since they are my target audience and I live by reaching them by whatever means come to hand. It is unsurprising that a barrister can make a video in which he or she passes on knowledge and skills – they are, after all, practiced in articulate oral expression of facts and arguments. It is good to find one who has actually made use of one form of new media, and then published it on another (his blog).

Those of us who follow Seán Jones QC  of 11 Kings Bench Walk on Twitter @seanjones11kbw do so for his dry and self-deprecating humour as much as anything. He is a senior employment barrister, and if I employed anyone or was employed (neither being conditions I aspire to), he is the one I would want on my side if a dispute arose.  That I reach such a conclusion entirely on the strength of a few tweets illustrates the power of social media as a marketing tool.

Seán Jones muttered something on Twitter recently about going off to make a video, and we now have the results, Witness Statements 7 Deadly Sins. How promising does this look, we ask ourselves, as we see that the video is of the talking head variety and delivered by a man who describes himself as having “a magnificent set of jowls and a grating nasal tone”. Even if this was a fair self-judgement (it is not), you would soon forget it. Continue reading

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EU Commission under fire for its data protection reforms

EUObserver.com reports that EU Justice Commissioner Viviane Reding has come under fire, from the Article 29 Data Protection Working Party amongst others, for the scope of and proposed timescale for her proposed new data protection rules.

These are seen by some as a “power grab” (What? The EU seeking to grab powers?) and fundamental issues arise not only about the speed with which implementation is planned but about the constitutional propriety of the proposals. Those of us who fully expected that the 2009 Treaty of Lisbon would be abused feel vindicated by the EU Commission’s claimed right to alter fundamental laws without reference to member states.

Don’t misunderstand me here. I am all for reigning in the abusive use of what should be personal information, and Commissioner Reding is probably the right person to take on the task. If the EU is to serve any purpose at all (and its primary purpose so far as I’m concerned is to provide employment for its elected members and bureaucrats) then this is the sort of thing it should be thinking about.

The key word here, however, is “thinking”, and it would be good to see some evidence that the full consequences of the proposals have been thought through before it is dumped on member states by ambitious politicians and job-creationist bureaucrats.

In particular, one would like to see some analysis of the “savings for business” which have been claimed for the proposals. I  can see that a unified set of regulations ought to be easier to navigate. The EU does not work like that, however, and every new set of regulations brings with it greater powers for arrogant officials to interfere and get in the way, whether or not any benefit results from the intervention.

Money drops from the sky at the end of every month for an EU civil servant, and none is ever dismissed for sloth or incompetence. They have no understanding of the needs of businesses and no incentive to make this work for them.

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Australia, New Zealand and Hong Kong claiming eDiscovery attention

Australia, New Zealand and Hong Kong only look close together when viewed from a long way away. They all have a common law eDiscovery tradition, but it is coincidence of timing rather than any specific commonality which groups them together in this post. A group of articles has bunched together in the electronic equivalent of my in-tray (Evernote, since you ask) and it is convenient to pick them off together.

So far as Australia is concerned, I have written recently about Practice Note SC EQ 11 which aims to limit disclosure of documents in the Equity Division of the New South Wales Supreme Court. That no doubt will be discussed at Chilli IQ’s 6th Information Management and eDiscovery Summit, due to take place in Sydney on 19 and 20 June. Confirmed speakers include Michelle Mahoney, Director of Legal Logistics at King & Wood Mallesons, and Browning Marean of DLA Piper US.

The subject headings cover the full range of current talking-points. The unambiguously named Predictive coding: what is it and how could it change the practice of law in Australia clearly aims to give this subject its due.  Michelle Mahoney knows more than most on on How to best manage outsourcing eDiscovery and hosting. Browning Marean is always lucid on legal holds. Add Nuix on Integrating legal technology into your organisation and you conclude that Chilli IQ are not stinting on quality speakers. Continue reading

Posted in AccessData, Australian courts, Discovery, eDisclosure, eDiscovery, Electronic disclosure, FTI Technology, New Zealand, Nuix, Recommind, Singapore | Leave a comment

ILTA Insight in London – Beyond the Traditional Law Firm IT – 8 and 9 May

The next event iILTA Insight 2012n which I am involved is ILTA Insight in London on 8 and 9 May. This year it runs over two days and is produced in conjunction with LegalTech, a division of ALM.

I am moderating a panel on predictive coding on 8 May. The panel members are Senior Master Whitaker, Greg Wildisen of Epiq Systems, Vince Neicho of Allen & Overy and Browning Marean of DLA Piper US.

The focus of our panel is on the use of predictive coding by lawyers and the likely reaction of the courts, under the heading Litigation and Practice Support. A second session on Day 2 will look more closely at the technical aspects on the Emerging Technologies track.

The event itself has a much wider remit than eDiscovery. Other main topic headings include Efficiency and Strategy, Information Management, Innovation and Strategy, and Service and Process Support. Keynote speeches cover Cyber Crime and the Economic Outlook 2012.

There are still some places for this event. This link takes you to the right place to book one of them.

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Interview with James Moeskops of Millnet on Predictive Coding

In the light of Judge Peck’s Da Silva Moore Opinion approving the use of predictive coding in US Federal civil proceedings, I recently interviewed James Moeskops of Millnet about the use of this technology in English courts. The result is a podcast which you can find here.

Anecdotally, the use of such software is increasing in the UK – I say “anecdotally” because such things rarely become the subject of published judgments in the UK, and my information is the aggregate of feedback from providers who, like Millnet, have the software and the skill to provide it.

One of the two cases covered in my article Two predictive coding case studies emphasise time and cost savings involved a UK matter in which Millnet and Eversheds used Equivio’s Relevance product, and I thought it worth following this up now that we have a US opinion on the subject.

The brief recording begins with a short introduction from me describing in simple terms what predictive coding is. I then ask James Moeskops the sort of questions which might be asked by a would-be user – when would Millnet suggest the use of predictive coding, and what questions would James ask to get a feel for the case?  I also ask James to describe the process which Millnet would go through, in conjunction with the lawyers, to apply predictive coding technology to the data.

I conclude by asking James where he sees predictive coding going over the next 12 months, specifically in the UK. Continue reading

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Speaking and learning at iCONECT’s Global Summit on Litigation Technology

I had the pleasure and privilege of giving the opening day’s keynote speech at iCONECT’s Global Summit on Litigation Technology in Florida last week. I brought back at least as much as I delivered in terms of the understanding of eDiscovery which the event was designed to foster. I also enjoyed myself immensely.

The venue was the Hilton at Fort Lauderdale which, for the geographically challenged, lies north up the coast from Miami. There is a set of photographs here. The sea winds in everywhere here, with expensive-looking leisure vessels (“boats” rather understates it) moored alongside the hotel and strong breezes bringing squalls of rain out of a clear sky. I arrived on Saturday evening, finding Nigel Murray of Huron Legal already there, as I usually do on these occasions, almost anywhere in the world.

iCONECT’s Chief Operating Officer, Ian Campbell, opened the show with a quick survey of the new Xera which was launched at LegalTech. I wrote approvingly of its appearance,  saying of it:

“An interface designed for the Facebook and LinkedIn generation but which nevertheless conveys businesslike efficiency is just what we need. Xera has all that and more. The expression “to raise the bar” is much overused, and probably belongs with “unique” and “revolutionary” in the marketeer’s verbal dustbin, but I’m willing to use it this once – Xera will raise the bar for user-friendly application interfaces in eDiscovery”

Ian Campbell’s talk took us behind the interface, talking of billion item projects, freedom from Active-X, data migration into and out of Xera,  advanced analytics and domain searches; we heard about the ability to develop your own “tiles” to personalise the interface and the workflows, and about relationships with, for example, Wave, Kazeon, Nuix and Opus 2’s Magnum.

Then it was my turn. I rarely do speeches, preferring to moderate or take part in panels, but the opportunity to devote an hour to a subject of my choice, and in such company, was not to be ignored. I chose as my title Innovation and Informed Risk-Taking are an eDiscovery Duty which was, and not by coincidence, the title of an article I wrote after LegalTech. The broad themes were to do with the responsibility, shared by all the players – judges, lawyers, in-house legal, IT and information professionals, suppliers and law schools – to lift our collective heads from the craven fear of sanctions and the illusory search for a perfection which the rules do not require anyway. Continue reading

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Peck predictive coding Opinion upheld: does anyone remember what this case is actually about?

It is fascinating to watch a story break on Twitter. The news that District Judge Carter had upheld US Magistrate Judge Peck’s opinion in Da Silva Moore appeared first as a rumour, probably within a few minutes of the promulgation of Judge Carter’s opinion. Within a short time, rumour was supported by links to the opinion itself, and not long after that the first commentary appeared.

Like Judge Carter, I am going to assume your “familiarity with the facts and the predictive coding method”. As in most jurisdictions, an order will only be overturned if it was “clearly erroneous or…contrary to law” and Judge Carter found no such grounds.

Key quotations will be recycled for months to come, Including these:

“The court adopts Judge Peck’s rulings because they are well reasoned and they consider the potential advantages and pitfalls of the predictive coding software”

“The ESI protocol contains standards for measuring the reliability of the process and the protocol builds in levels of participation by plaintiffs”

“If plaintiffs determine that they are missing relevant documents, they may revisit the issue of whether the software is the best method”

“There is simply no review tool that guarantees perfection….. Manual review with keyword searches is costly….[and] is prone to human error and marred with inconsistencies from the various attorneys’ determinations of whether a document is responsive”.

“Judge Peck concluded that under the circumstances of this particular case, the use of the predictive coding software as specified in the ESI protocol is more appropriate than keyword searching. The court does not find a basis to hold that his conclusion is clearly erroneous or contrary to law”.

The opinion ends with this:

“The court reminds the parties that it affords Judge Peck’s non-dispositive rulings great deference and Magistrate Judges generally have broad latitude with respect to discovery issues”

It is worth emphasising this latter point (that is, the fact that Judge Carter added this “reminder” on to his Opinion) because the plaintiffs motion for recusal (that is, the removal of Judge Peck from hearing these issues) is still extant.  I am spared having to say too much about the plaintiffs’ lawyers by my self-imposed rule which bars overt criticism of identifiable individuals in eDiscovery – I am happy to damn with faint praise (if you are unfamiliar with that expression see the penultimate sentence of this article), to attack whole classes, or to balance negative comments with something more positive, but there are no half-measures or mitigating factors here, so it is best to keep my mouth shut – well, not my mouth, perhaps, but at least to be restrained in what I write. Continue reading

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The Dominic Regan podcast for IQPC’s London Summit

I wrote recently about the podcasts which IQPC have put on their website as tasters for their Information Governance and eDisclosure Summit which takes place in London between 14 and 16 May.

You may be interested in another one which is available from here without having to complete the registration form.

It is one which I recorded with Professor Dominic Regan with the title Why the Jackson Reforms mean the biggest ever upheaval for litigation. I have already published a transcript of this interview but those who prefer to listen rather than read can now hear this short recording.

This is complemented by an article written by Dominic Regan called Lord Justice Jackson has no regrets over his proposal on civil litigation costs, which he wants to see implemented next April “in their entirety”.

Dominic Regan is one of the many well-known speakers at the Summit and his talk is likely to be a major attraction for those who want to know how the practice and procedure of litigation is likely to develop.

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A reminder of Nigel Murray’s bike ride for Help for Heroes

I saw on the news last night the funeral of yet another British soldier killed in Afghanistan. He was married to a local girl and had three boys. He was 25.

It reminded me about this year’s Big Battlefield Bike Ride in aid of Help for Heroes which Nigel Murray and others from Huron Legal’s London office are bravely undertaking. The “heroes” referred to are the many who do not die but who are brought back home badly injured.

I wrote about Nigel’s 2012 involvement in my article Nigel goes over the top on his bottom for Help for Heroes. I am given to understand that he is in training, recently in Dubai, whence he reported as follows:

With only 6 weeks to go until the off (20th May) my training needs to step up a bit!  I was fortunate to be in Dubai for a week before Easter and managed to take a couple of days off.  So, hired a bike from a local shop and on the first morning headed into the desert, mostly on roads, however now and again these ran out, so had to walk to the next bit of road!.  Well, the climate in Dubai, like in other parts of the world, is getting pretty unpredictable and erratic.  On the day I landed it was in the late 20’s (early 80’s) however on the day I headed into the desert (leaving the bike shop at 1130am)  it rose to 42 degrees (107).  And with a decent wind blowing up the sand it was an interesting experience – and one that I am unlikely to face in Northern France.  At one stage I took to sitting on a box in the underground car park of a horse race track, drinking my bottle of (very warm) water trying to cool down!  Good for fitness though – and I survived.  All in all, I probably managed about 90 miles in Dubai over 3 rides – I say probably because I had no speedo so distances were a guess based on an assumption of an average speed of 15 mph and the time actually riding

As happens every year, I will be abroad, this time in Las Vegas for CEIC. One year I will actually fulfill my ambition of a giving Nigel a wave as he pedals past.

It is good to see so many names from the eDiscovery/eDisclosure industry supporting Nigel. If you would like to join them, the donations page is here.

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Reed Smith chooses Equivio Zoom for Predictive Coding and Analytics and Relativity for Review

Since both Equivio and Relativity sponsor the work of the eDisclosure Information Project, I am necessarily interested in reports of their big sales. I do not, however, write about every success on the part of those who fund what I do because they, as well as I, value my readership and know that we would soon drive it away if all that you found here was lists of buyers. That function is ably served by others, and I am spared having to decide, for example, whether this sale is worth reporting where that one was not, quite apart from considerations like having only a finite number of hours in a week.

Every so often, however, a law firm or other user makes a strategic purchase which serves in some way as a model which others ought to follow – not necessarily with the same suppliers, but as the product of a coherent plan to offer an integrated set of services to clients which reconciles quality with cost.  There is a fiercely competitive market out there of software suppliers, providers of managed review, and consultants offering project management and other skills, and a decision to bring all that in house is not lightly made. Continue reading

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Bye Bye Google Plus – for now at least

In case you are wondering at the number of short posts which I have put here this morning, I began the day intending to capture short notes on my Google Plus page.  I have invested a fair amount of time in Google Plus since its business pages were launched, and found it a convenient way to capture more of the ever-growing volume of interesting eDiscovery / eDisclosure material which accumulates in any week.

Having dictated a few today, I went off to add them to Google Plus. Google has recently given Google Plus what its probably calls “exciting enhancements to the user experience” or some such drivel. I call it “frigging around with the user interface”.  So far as the reader is concerned, the new layout truncates my business name, making it the “eDisclosure Information Projec” or “eDisclosure Information Pro” and perhaps other variants depending on your screen resolution. More significantly, from my point of view, you can no longer edit the link made via by the paperclip – you only get one shot at it – nor do you have the option to remove any text from the linked file which is carried over by making the link – this used to be a single-click action.

If there are in fact workarounds for these things, I can’t be bothered to look for them. I want a quick publishing tool, not a new hobby.

I may come back to it, but for now I will leave Google Plus to play with itself. The result will be an increased number of short posts on this blog where I would rather have kept it for the longer and more thoughtful posts. Another drawback is that those who have signed up for blog e-mail notifications will receive rather more of them, something I had hoped to avoid by the use of Google Plus.

I will continue to put links from Google Plus into this blog for SEO purposes and, perhaps, do the occasional very short entry there, if only to keep in touch with developments while Google plays catch-up with others. I may well look at some of those others – Pinterest for example – in the meantime, in part to find the best way to display photographs. Google Plus does this very well; Pinterest may do it better.

There is a moral here somewhere for those who think that change with enhancement are synonyms.

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The Orange Rag on consolidation in the eDiscovery market

Charles Christian’s Orange Rag brings us a helpful summary of the recent round of acquisitions in the eDiscovery sector with the heading The Great eDiscovery Shakeup – or is that Shakeout? and predicts that 2012 will see yet more of them.

Charles describes Google as the elephant in this particular room (in the proper sense of the very big thing that no-one mentions), drawing the conclusion that Google’s appointment last summer of Autonomy’s Jack Halprin is a sign that Google wants a slice of the eDiscovery market.

I raised much the same point last summer when Halprin was appointed asking “why, exactly, does Google want a senior client-facing executive with the word ‘Enterprise’ in his job title?” on the eDiscovery side.

Charles Christian sees this potential development as an encouragement to smaller  eDiscovery players to “look for an exit”, that is, to get themselves acquired as soon as possible. There are many other reasons why they might want to do this, of course.

American Legal Technology InsiderThe Orange Rag article to which I have linked is part of the latest issue of the American Legal Technology Insider, a copy of which can be obtained here.

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Lord Justice Jackson to undergo cancer operation

A brief note on the judiciary website reports that Lord Justice Jackson will shortly be undergoing an operation for cancer. His absence is not expected to impede the work of the implementation of the Costs Review Final Report which will be conducted by the Judicial Steering Group in his absence.

I wish him a successful operation and a speedy recovery, first and most obviously for his sake, but also for the sake of the reforms which he has been driving through, fighting indifference and apathy as well as positive opposition.

Supporters outnumber opponents, however vociferous some of the latter may be, and Lord Justice Jackson has won the respect of many of those who oppose some of his aims. It is hoped that he will be back by October.

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Greg Wildisen of Epiq Systems on Predictive Coding in UK eDisclosure

The Society for Computers and Law has published on its website an article by Greg Wildisen, International Managing Director at Epiq Systems with the title E-disclosure: Training Technology.

Epiq offers predictive coding through the integration of Equivio’s Relevance product into Epiq’s IQ Review, a mixture of technology and consultancy services. Greg Wildisen summarises briefly the story behind Judge Peck’s Opinion in Da Silva Moore v Publicis Groupe which approved the use of predictive coding technology in a case in which parties had agreed to use the technology, and considers the likely reaction when this type of technology is used in UK proceedings.

He focuses on the significance of analysing non-relevant as well as relevant documents and, potentially, of doing so cooperatively with opponents in order to win agreement about the validity of the process. He thinks it possible that lawyers may object to the disclosure (in the broadest sense of that term) of documents which are not strictly required in the present litigation, not least because of implications for future cases.

I am reasonably optimistic about this, partly because (as Greg Wildisen makes clear) judges have discretion to make whatever orders they think appropriate for the better conduct of the case before them, and partly because clients’ objections are likely to whither in the face of the enormous potential for cost savings – they will be willing to give a little to gain a lot or, at least, to make a proper assessment of the risks against the advantages

We shall see. Meanwhile, Greg Wildisen’s article is a good short summary of implications which UK lawyers and their clients should be thinking about.

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Mary Mack of ZyLAB: eDiscovery – A Focus on Cost Saving and Winning

Metropolitan Corporate Counsel recently interviewed Mary Mack, Enterprise Technology Counsel for ZyLAB. The result is published as eDiscovery – a Focus on Cost Saving and Winning.

Subjects include moves by corporate counsel to take more control of eDiscovery, the ongoing discussions about potential changes to the US Federal Rules of Civil Procedure, and developments in Technology-Assisted Review following Judge Peck’s Opinion in Da Silva Moore.

Mary Mack also talks about the difference between qualitative and quantitative early case assessment, the processing of non-standard items, and redaction.

The main message is that tools exist to take control of ESI and to reduce the time and cost of the components of the eDiscovery exercise, freeing lawyers to spend time on the issues and on strategic legal advice.

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New Zealand’s new Discovery Rules and Electronic Discovery

New Zealand introduced new discovery rules in February 2012, making it the most recent common law jurisdiction to exercise closer control over how the lawyers and courts conduct the management of discovery – which inevitably means largely electronic discovery.

His Honour Judge David Harvey is a New Zealand District Court judge. I met him at the excellent Singapore conference on Electronic Litigation last year and we have kept in touch. He has written an article jointly with Daniel Garrie of Law and Forensics LLC and called New Zealand’s New Discovery Rules and Electronic Discovery which summarises the new rules and which has been published this week by the UK Society for Computers and Law.

I hope to come back to this subject, but meanwhile point you to this interesting description of developments in a jurisdiction which, by standing back for a while, had the opportunity to observe what the rest of us were doing before introducing its new discovery rules.

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Interesting times in eDiscovery and outside it

I find that I field complaints if I fall silent for a few days. It is, of course, gratifying that anyone should notice, and a word or two of explanation might pre-empt the assumption that I have packed up and gone home – or, rather, left home, since home is where I work.

The weeks leading up to Easter were pretty busy, not because of any great commitments of mine, but because of the buzz in the eDiscovery world about Judge Peck’s opinion in Da Silva Moore and the ensuing – and disgraceful – ad hominem attacks on one of the few judges who understands about the application of technology to the just, speedy and inexpensive obligation in Rule 1 of the Federal Rules of Ciivl Procedure. The UK had its own share of activity, with a run of eDisclosure-related judgments after a long period without any.

Although I have not needed my passport since LegalTech, there was a long period in which there was always another video or webinar looming. They are fun to do, and a good way of getting messages to wider audiences, but they each have a back-story of conference calls and slide preparation whose drawback is not the aggregated time spent on them but the deadlines and the carving up of the days which they involve. In addition, there are conferences coming up between the end of April and mid-November which, to varying degrees, require planning calls and drafts now.

None of this usually interferes with the ordinary run of producing articles, which I am happy to do one sentence at a time if necessary in between other things. White papers are a different matter, requiring proper research, the assembly of sources, a structure, and time to stare at the screen whilst the ideas form. There were a clutch of those to do, and that requires switching off Twitter and email and ignoring everything else but the task in hand. I had long ear-marked the week after Easter as a good time to cut myself out of the information stream. Continue reading

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Articles on eDisclosure, eDiscovery, Cooperation and Privacy by UK and US Judges

For reasons which I may explain separately, I had banked on the Easter period being quiet on the eDiscovery front. On the whole, that hope was justified, with Twitter relatively quiet, few interesting things to pass on, e-mail volumes down, and almost no phone calls.

What did appear just before the break, however, were no fewer than four important and interesting articles by judges, two from England and Wales and two from the US. I group them together here with the briefest of introductions – none of these people need much help from me to get their messages across.

The UK articles are written by HHJ Simon Brown QC and Senior Master Whitaker who, apart from Lord Justice Jackson, are the two judges best able to cover this ground (that is not saying that they are the only ones who are competent to adjudicate on eDisclosure and case management issues, but only they articulate views for the guidance of court users).

Both these articles appear on the New Law Journal site which is increasingly the source of choice for those who seek thoughtful commentary on litigation matters (and on other practice areas, no doubt). The NLJ has recognised the importance of these two articles by making them free to view. Continue reading

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Using a neutral third party to resolve or prevent disclosure disputes

One of the most useful UK resources about electronic disclosure is Clive Freedman’s electronic disclosure wiki at www.eDisclosure.uk.com.

Clive Freedman is a barrister at 3 Verulam Buildings and is (as I am) a member of Senior Master Whitaker’s working party which produced the eDisclosure Practice Direction 31B and the Electronic Documents Questionnaire. It is he who shouldered the burden of translating our deliberations into drafts and who, with Master Whitaker himself, set out to ensure that the practical and technical inputs were made to fit within the formal and procedural requirements imposed by the conventional structure of the Rules.

Clive’s website provides links to the relevant rules and practice directions and other sources of relevant materials, and adds references to cases in the courts which deal with eDisclosure. If it is my role to provide the narrative, Clive provides the nuts and bolts.

Clive has recently added a new section to his website with the heading “Using a neutral third party to resolve or prevent disclosure disputes” in which he discusses how a neutral may be able to assist the parties, with a view to minimising the delay and expense which may arise where parties are unable to reach agreement.  It is relevant in this context to know that he is a Fellow of the Chartered Institute of Arbitrators and an experienced mediator of IT disputes.

His new section sets out the passage from Lord Justice Jackson’s Preliminary Report about the possibility of using what were referred to as ”disclosure assessors”. Such a person could, Lord Justice Jackson said, ”immerse himself/herself in the issues and the primary documents and identify which categories of documents on both sides truly merit disclosure” as well as dealing with other disputes relating to disclosure.

As Lord Justice Jackson’s Final Report says, this suggestion aroused strong views on both sides. I personally support the idea, partly as a remedy for the lack of specialist skills amongst case managing judiciary, and partly because of the US experience of Special Masters who perform an analogous function.

For the moment, anyway, there is no provision in the Rules for the role of disclosure assessor. Like so much else, however, there is no reason why parties should not appoint such a person by private agreement in an appropriate case, ”appropriate” generally implying that time and costs are to be saved by the joint instruction of a neutral person to stand between the parties, with an understanding of the Rules, the parties’ objectives and the techniques (a wider concept than mere technology) which might be used to cut down the disclosure burden.

It takes a particular type of skill to fulfil this role, and it is not one I seek for myself. Clive, however, does have the necessary experience, and is ready to use it to assist parties in minimising delay and expense.

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First Advantage to host cross-border regulatory conference in Brussels

Updated on 19 April to include a link to the press release about this event including the timetable.

I wrote recently about the acquisition of DLR Legal by First Advantage Litigation Consulting, which brings together FADV’s technology and consulting skills and DLR Legal’s multilingual review expertise.

I have also written and spoken a lot recently about litigation and regulatory investigations which raise legal, practical, technical and language issues, often simultaneously and often at very short notice. Regulatory investigation raise implications, and have timescales, which are particularly challenging.

The first fruits of FADV’s acquisition comes on 24 April when they host a conference on The Hidden Risks of Cross-Border Regulatory Investigations at the Cercle de Lorraine, Brussels. The event is introduced by DLR Legal’s co-founder Mathieu van Ravenstein.

The legal context is provided by Andrew Hockley, a partner at Berwin Leighton Paisner LLP, whose subject is Cartels and Leniency. Drew Macaulay of First Advantage is speaking on Challenges in gathering and reviewing evidence in regulatory investigationsMichele Tagliaferri, an Associate at Sidley Austin LLP brings together the legal and practical implications with a talk called Data collection, review and transfer issues.

All this is conveniently gathered together in an event which starts at 11:30am  CET and finishes in time for lunch at 13.15pm. For further information about the event, or to register, send an e-mail to virginie.dierckx@fadv.com.

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My Google Plus eDiscovery and eDisclosure posts to 6 April

A two-day absence in a place where cellular data has yet to penetrate put me behind in the routine task of picking up useful articles and putting links to them on my Google Plus page.

Google’s enthusiasm for rolling out new features seems to have outstripped both its ability to handle the basics and its provision of any form of usable support. I am unable to edit posts at the moment – any attempt to save changes gives the message There was a problem saving your page. Please try again. Trying again yields no better answer.

The sunny uplands of Google’s formal help sections do not appear to admit of the possibility of problems. The alternative is a messy forum in which every user dumps questions and issues. An ordinary Google search may turn up the words you are looking for, but then just puts you at the top of an unsorted, unfiltered list of hundreds of questions, none of which ever seems to be answered. The only way to correct the error is to copy the contents to a new post, correct the error (in my case just a missing apostrophe), save the new one and delete the original.

The more positive side, justifying even this tiresomeness, is that the links from here index well in Google. This week’s G+ posts, excluding those which link back to my own Blog, are:

Joanna Goodman on the Commercial Litigation Association (CLAN) conference in London

FCPA expert Michael Volkov move to “entrepreneurial” LeClairRyan

Ten years of eDiscovery mergers, acquisitions and investments

Are you a Data Controller or a Data Processor? It might be helpful to know

Judge Waxse sets an evidential hearing on hearing of obviously inadequate search

A window into eDiscovery disputes – Day 2 of the Kleen Products case

CY4OR seeks Champions for Sales and Marketing Roles in the North-West

ASIC signs Three-Year Contract with Nuix for Electronic Investigation Software

Predictive Coding – its Providers and its Synonyms from Rob Robinson

Guidance Software launches EnCase Forensic 7.03 for Faster, More Efficient Investigations

Google Apps Vault Brings Information Governance to Google Apps

Law Firms take note: Nikon takes Symantec’s Clearwell eDiscovery Platform in house

__________ Continue reading

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Relativity – channelling the enthusiasm at kCura

kCura’s growth prompts thoughts about how companies and industries (and empires and whole civilisations come to that) start and grow, and how they must keep moving forward to stay at the top.

The accepted wisdom, promoted by Gartner in its Magic Quadrant for E-Discovery Software of May 2011, is that there will be no new entrants into the eDiscovery / eDisclosure software market. A number of factors appear to support this idea: the cost of entry is too high; corporate counsel and law firms are, in general, looking to reduce the number of providers with whom they work; whilst the technology improves every year, the improvements are refinements of a by now fairly standard set of core technologies, with attention focused on wringing more speed, more accuracy, and greater usability out of them; the trend is towards consolidation, as players merge or acquire each other, and any new players will come in by buying an existing one;  there are not enough skilled people to float a new eDiscovery player; the emphasis is on better ways of meeting clients’ objectives, of becoming more consultative and of improving both the user experience and support rather than on inventing new technology.

Oxford CanalIt would be foolish, of course, to look too far ahead in this as in any technology-driven industry. I live by a canal, for example, which, when it was completed in 1790, was the last word in transport infrastructure, the latest venture in a short and intensive spate of development which had underpinned fast industrial and sociological change, making it possible for the first time to bring food, fuel and raw materials into the cities which grew as a result, and to carry the products of the factories out to new markets. On the other side of my house is the railway, which reached Oxford 50 years later and  made the canal more or less redundant overnight. Over the next 120 years, railway technology barely changed – engines became faster and more reliable, and infrastructure and safety were improved, but the pioneers would have recognised the railways which they invented right down to the point when they were wiped out in their turn by cars, trucks and buses. Other industries show similar patterns.

Much the same happens with companies. New players appear, work hard at developing new ideas and grow, becoming, perhaps, the industrial giants of their time, before either falling apart under their own, by then ponderous, weight, or being overtaken by more agile rivals. The history of the British Empire followed the same pattern, and it seems likely that the supremacy of the whole Western world is going the same way. Furthermore, the wheels are turning faster, and one can go from nothing to domination and back again in a very short space. Longevity lies in constant reinvention and in retaining the ability to keep the freshness of youthful success whilst expanding and prospering.

I have not looked back at my archive, but I suspect that I have written in these terms before about kCura, the makers of the Relativity eDiscovery software for analysis, review and production.  The earliest reference I made to Relativity was in July 2008, when I first met its founder and CEO, Andrew Sieja.  He came to see me in Oxford, and we walked up the canal and by the railway which gave me the parallels which appear above. If I had had any spare money, I think I would have invested in kCura on the strength of his ambition to make it succeed. It was not the technology which would have parted me from my money –  Andrew may have known where that was going, but I certainly did not – but the ambitious yet wholly credible roadmap.  This is what I said at the time: Continue reading

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Equivio spells out predictive coding basics on ESIBytes podcast

Yet again, I find myself pointing to one of Karl Schieneman’s ESIBytes podcasts as a source of timely and coherent explanations of topical eDiscovery issues.

Predictive coding inevitably dominates at the moment, thanks to the coincidence of the Da Silva Moore and Kleen Products litigation. In both cases, although in very different ways, the defensibility of predictive coding / technology assisted review / computer assisted review / call it what you will / is at issue.  Most of us who are interested in encouraging the use of predictive coding would have preferred a less confused battleground than is offered by either of these cases, and value any explanations which stick to basic propositions uncluttered by the wider agendas coming out of the cases.

Anyone who speaks from first-hand experience, whether as a provider or a user, will have a preferred product; what matters are the core concepts, and it would be odd if speakers did not use their own or their preferred products to illustrate these concepts. Here, as in his other podcasts, Karl taps the special knowledge of his speakers to draw out broader understanding.

Warwick Sharp of Equivio is a particularly lucid advocate, both of the specific components and workflows in Equivio’s Relevance product and of the wider principles – it is from him that I got the idea that the true test of a technical explanation is whether your mother, having heard it, can explain it back to you. He is one of the speakers on Karl Schieneman’s Predictive Coding and Review Roundtable recorded on 26 March; the others are Jim Wagner co-founder and CEO of DiscoverReady, and Tom Gricks, head of E-Discovery at the law firm Schnader, Harrison, Segal & Lewis, both of whom were early converts to, and are convinced users of, predictive coding where that use is appropriate to save their clients’ money without diminishing their arguments, their strategy or their proper conduct of cases. Continue reading

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Machine learning to anticipate eDiscovery not just to manage it

Jim Shook of EMC takes us back to the stage before discovery. The advanced technology used for dealing reactively with discovery requests has its place at a much earlier stage in the process.

Judge Peck’s opinion in Da silva Moore passes into a kind of limbo pending its review by Federal Judge Carter.  The analysis of the present position has been exhaustive and, to some extent, repetitive, and those of us who comment on these things have little more to say until Judge Carter does his stuff. We are waiting, too, for the next step in the Kleen Products case before Judge Nolan. It is a bit like one of those uneasy patches on the French battlefields of the Great War as everyone waited for the whistle signalling the next big push.

It is a good opportunity, perhaps, to look in a more rounded way at the broad class of technology which, whether you call it predictive coding, technology-assisted review, machine learning, or whatever, connotes generally the idea that computers learn from a mixture of rules and previous inputs  in order to “predict” what should be done with documents, classes of documents or, perhaps, whole servers full of documents.  The technology being developed for this, and for similar functions which have nothing to do with discovery,  has many of the same characteristics  and objectives as the pure discovery applications. Marketing intelligence, news sites which point you to related articles, shopping sites which suggest alternative purchases and (as Judge Peck noted) anti-virus software, all include elements of this kind of prediction. Continue reading

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Podcasts give tasters for IQPC’s Information Governance and eDisclosure Summit in London

Patrick Oot of the Electronic Discovery Institute and the SEC is interviewed by Jim Vint of Navigant in a podcast which anticipates some of the subjects which will come up at IQPC’s London Summit between 14 and 16 May

The list of speakers for IQPC’s 7th Annual Information Governance and eDisclosure Summit is pretty good bait on its own, even without looking at the agendas for the Pre-Conference Workshops, Day 1 and Day 2. Even if you do not know the names of the individuals (and you will certainly know some of them) the job titles and the company names make it clear that you will be getting ideas and recommendations from the top.

IQPC has recorded some podcasts in which speakers talk about their subjects. Although these are obviously intended as trailers for the conference sessions, they serve also as useful sources of information in their own right – I interviewed Professor Dominic Regan, for example, and what he said formed the basis for an article which I called Professor Dominic Regan on why the Jackson Reforms mean the biggest ever upheaval for UK litigation. Continue reading

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Traps for the unwary – the cross-over between social media and eDisclosure

Social media and electronic disclosure are two important subjects which many companies and their lawyers would rather ignore – their very names are enough to strike apathy into many hearts. eDisclosure provider CY4OR has joined forces with others to promote awareness about these two subjects, which can often become inter-related, and at short notice.

Some subjects do not get the attention they deserve, their very names causing lawyers and their clients to change the subject. In any context, the labels can have an alienating effect or can conceal what is really meant. A former director of the Imperial War Museum once said that he had to sell the hardest three words in the world, though he went on to achieve just that.  Twenty or more years ago, British railway companies, as uselessly incompetent then as now, decided that calling their passengers “customers” would stand substitute for any improvement in the service. The UK Civil Procedure rule-makers decided in 1999 that relabelling “discovery” and calling it “disclosure” would somehow make the process better.

Labels can arouse derision (“politician”), fear (“hoody”), contempt (“chav”) and so on, encouraging the suspension of thought as to what is embraced by these terms.

Sometimes, labels simply become affixed to a subject or category without direction or decision, in the way that “social media” has stuck to a range of mechanisms which allow people to communicate. Like the smooth green surfaces on Dartmoor which conceal deep quagmires, they are traps for the unwary. Continue reading

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My Google Plus eDiscovery and eDisclosure Posts to 31 March

Here is another of of the periodic lists of the short posts about eDisclosure and eDiscovery which go on my Google Plus page. This is in part a place to put short posts which link to things which might otherwise be missed, each with a short comment from me.

There is a secondary purpose: whilst each such article and link must have its own value, they also serve a valuable SEO (Search Engine Optimisation) purpose. Links from there back to here reinforce the SEO of this Blog. Links from here – by which I mean the entries on these occasional index pages – are ranking high in Google searches after a day or two.

I have been playing catch-up after a bad (or good depending on your viewpoint) run of videos and webinars which means that my formal writing schedule has slipped a bit and that I have a large stockpile of interesting links. The list below is a selection of things which came my way in the last week.

Electronic discovery in New Zealand two months after new eDiscovery rules

Regulation, investigation, Inquiries and FoI drive Australian and New Zealand eDiscovery

MEPs told to fast-track data protection reforms

New South Wales Supreme Court moves to limit disclosure

Judge Peck podcast with Karl Schieneman – validating Predictive Coding

eDisclosure, ducking stools, shock and awe and training

US Department of State advice on Judicial Assistance in France

Predictive Analytics, Privacy – and shopping habits Continue reading

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Jackson – Solicitors must be ready for electronic working

I was sorry not to make it to Lord Justice Jackson’s speech to the Society for Computers & Law this week. Someone will doubtless write a full report in due course, but for now the Law Society Gazette brings us a summary under the heading Jackson warns of compulsory electronic era.

Most of what is listed in the article relates to the provision of IT services by the courts which lawyers will be required to use, including compliance monitoring requiring parties to tick boxes to show that they have achieved milestones required by the rules or by court orders. There will also be a form for completing budgets which will presumably take account of the feedback received from the form already in use.

We will have to wait and see what is meant by the “development of systems to manage the disclosure of documents”. Disclosure is an obligation which falls on the parties, who can choose from a wide range of software applications according to taste and budget to help them cull the dross and prioritise the rest for review and subsequent exchange. I can see immense value in a court-led system for holding the conjoined (and de-duplicated) disclosure of both parties after exchange or, at least, that part of it which goes into the equivalent of the conventional trial bundle or which is the subject of an application before the court. I am unconvinced that the court has a role in hosting (as opposed to managing) documents at any stage prior to this.

Civil servants and user-facing databases have not made for happy combinations in the past, as anyone who has to grapple with the online presence of HM Revenue and Customs will testify. I recently had to fill in a VAT form which one could only access if one knew its form number; it did not open on a Mac, had no provision for saving the data either locally or at HMRC and, when printed, would have used half a pint of green ink. It was invented, I decided, by a committee of accountants, tax inspectors and geeks with no human involvement at all. Let us hope that the Ministry of Justice involves real live users when devising its systems (and, perhaps, takes some advice on the terms of contract with its providers).

That much is beyond the control of Lord Justice Jackson. We can be in no doubt, however, that those things which are within his power will happen. As with eDisclosure itself, the technology is secondary to the process, and all the fancy forms and electronic box-ticking will not help if judges and those who appear before them do not take seriously their shared obligation to fulfil the overriding objective.  That requires active management by judges as well as project management by lawyers; both have hitherto felt themselves rather above that sort of thing.

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Cross-Border Discovery – Federal Judge makes a monkey of the cheese-eaters

The collision between US discovery requirements and EU privacy and data protection laws is a long-running story of mutual incomprehension on which the formal conflict of laws is merely an overlay. US courts and regulators expect every last document to be produced according to a test of “relevance” which is cast as widely as possible, unconstrained (to European eyes, at least) by any sense of proportionality or necessity, even before you reach privacy, data protection and specific restrictions such as French blocking statutes.

There is a yet deeper layer of mutual antipathy, at some levels at least, between France and the US, derived in part from differing recollections of the country’s respective contributions to the outcome of the Second World War, and to the position taken by France in various subsequent conflicts including their attitude to NATO during the Cold War, the bombing of Libya in 1986 and, most recently, the invasion of Iraq.  Given the matters of high diplomatic importance which give rise to this US picture of the French, it is perhaps curious that the American view should find its most eloquent expression in words uttered by Groundskeeper Willie in a 1995 episode of The Simpsons; forced to multitask as a French teacher, he hailed his class with “Bonjour, you cheese-eating surrender monkeys.” The expression caught on, exacerbating the idea that the French may talk a lot but rarely defend their position. This extends, in US eyes, to the enforcement of their Blocking Statute. Continue reading

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Proof Finder 2 from Nuix now on video

Proof Finder 2 is a limited edition version of Nuix’s investigations and eDiscovery software tool which, in an imaginative exercise, the company is selling for $100 per licence per year. It has all the functionality of the full product, subject to a ceiling of 15GB per case. This second Proof Finder wave also includes the new Nuix Visual Analytics.

This initiative caught the eye not just because of the extremely rare opportunity to use top rank eDiscovery software at little cost, but because all the proceeds are to go to a charity – Room to Read, which supports education and literacy in the developing world by making books and reading skills available to those who would otherwise do without. The first Proof Finder release raised $35,000 which will be used to build a new school in Nepal.

Ideas like this warrant an equally imaginative approach to marketing them. Consistent with this, Nuix has produced a video which simultaneously explains the Proof Finder concept, tells you about Room to Read and illustrates Proof Finder itself to give potential users an idea of what they will see and what they will be able to do with their copy of Proof Finder.

Proof Finder 2 is backed by training, support and a range of other things designed to make it easy to learn how to use the software. That ease of use begins with a simple way of paying your $100 and getting hold of your copy.

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Disclosure and eDisclosure – filming a video primer with Dominic Regan

I took part in a video webinar with LexisNexis this week, part of their rolling programme of Butterworth’s Dispute Resolution webinars.

The key fact which I want to put right at the top of this article is that 2,340 viewers from 85 firms registered to watch this webinar, either live or by downloading it across the year. There is the CPD bait and, no doubt, law firm training supremos go round with whips to compel attendance, but this is tremendous reach, and an indicator of the subject’s importance.

The session was chaired, as always, by Professor Dominic Regan. My subject was disclosure (with and without an “e” at the beginning), and barrister Shantanu Majumdar of Radcliffe Chambers covered privilege as he did for the same event last year. Privilege is a subject which needs a light touch and rarely gets it – when it comes up at litigation conferences, I usually go out and have a smoke, check my e-mails and make my calls, and this is difficult when you are shut up in a basement in front of a camera. Shantanu Majumdar, uniquely in my experience, makes the subject interesting.

Dominic  is a good chairman – he comes across more as a genial host who has invited a couple of mates round to talk about things which interest them, without diminishing at all the seriousness of the subject-matter or the importance of the content.  LexisNexis have much improved the studio, possibly as a result of my complaint last year that I had to look down and left to see the slides and up and to the right to look at the camera. The slides are now immediately under the camera, which makes engagement rather easier.  Furthermore, the remote-control does actually move the slides when you click it. Continue reading

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My recent Google+ eDiscovery / eDisclosure posts

Here are links to some of my recent Google+ posts. These are short posts relating (usually) to eDisclosure / eDiscovery whose main purpose is to draw attention to articles and other things of interest  which I come across. I put them here in batches, excluding those which link back to posts which you will have seen here anyway.

AccessData chosen for legal evidence review platform for US Federal Public Defenders

Magnum from Opus 2 International and the end of paper trials

Colourful way to explain common grammatical mistakes

Daubert, expert evidence and predictive coding in Da Silva Moore

Predicting and taking control of eDiscovery costs with managed services – LDM Global managed Review

Show some respect: International privacy and comity concerns in international eDiscovery

Craig Ball: Putting the Duh into Da Silva Moore

Rob Robinson provides a useful collection of the formal Da Silva Moore documents

Useful case study from Epiq Systems on web crawling investigation

ESIBytes: Karl Schieneman talks with Herb Roitblat about predictive coding

Ralph Losey and Family with Shawnna Childress – an eDiscovery Webinar

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Having control of documents for disclosure purposes – North Shore Ventures v Amstead Holdings

I cannot remember when I last read a judgment whose subject matter included questions about whether certain documents could be said to be in the “control” of another for the purposes of disclosure.  Two such judgments have come my way today.

This was not the central issue in Phaestos Ltd & Anor v Ho [2012] EWHC 668 (TCC) (16 March 2012), which I wrote about here, but arguments about the control of documents were one of the reasons for the disclosure delays which were the subject of the judgment. The judge in that case ordered that a witness statement be made supporting the contention that certain documents were not in the control of the party giving disclosure.

North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11 (18 January 2012)  is a part one of those long-running sagas resembling War and Peace, both in its narrative spread and in its country of origin. More than one judgment turns up when you search for the names of the parties. My link is to a Court of Appeal judgment in which, on the facts before them, the court upheld the judge’s conclusion that documents in the hands of a trust remained in the control of the Appellants and were therefore liable to be produced.

The court was at pains to emphasise that these arguments appear in many guises, including those relating to the separate identity of a limited company as well as to that of a trust. It was not “either necessary or possible to give a cut and dried answer to the question whether and when a court may make an order” of the kind sought, and “in deciding whether to order disclosure, a court may have to balance competing interests of different beneficiaries, the trustees and third parties. Disclosure may have to be limited and safeguards may have to be put in place.”

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Charity Quiz Night for The Children’s Trust on 3 May

Jack Bond, litigation support specialist at Dewey & LeBoeuf in London is organising a charity Quiz Night on 3 May in support of The Children’s Trust and in memory of his daughter, Sarah.

He is getting together teams in tables of six from people in firms, companies and service providers whose work involves litigation support, eDisclosure, translation and the like. Those booked in already include providers including:

Clearwell
Control Risks
CY4OR
DLR Legal
Epiq
Ernst & Young
First Advantage
FTI
Geotext
Millnet
Transperfect
Unified

and law firms DAC, Plexxus and Seymours.

The venue is Balls Bros, Mark Lane and the time is 6.30pm for 7.00pm on 3 May.

Table are still available. Food will cost approximately £10 per head and there is a minimum donation of £100 per table.

This sounds like an enjoyable way to do some good for a worthy cause. If you are interested contact Jack Bond JBOND@deweyleboeuf.com

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Another indemnity costs order for eDisclosure failures

By coincidence, we have a second UK judgment in a few days which ends with indemnity costs being paid by a party for failing to comply with its disclosure obligations.  Mr Justice Akenhead’s judgment in Phaestos Ltd & Anor v Ho [2012] EWHC 668 (TCC) (16 March 2012) begins with this:

This revised case management hearing was fixed on Wednesday for an hour-and-a-half, starting at 8.30 in the morning. It was listed for an hour-and-a-half and the purpose was, as I made clear on Wednesday, that the Court should finally deal with, and dispose of, issues relating to the scope of electronic disclosure on the part of the claimants, primarily. It is clear that substantive agreement on the defendants’ electronic disclosure had been reached.

…and it ends with this:

It is agreed that the costs of, and occasioned by, the claimants’ application earlier today should be borne by the claimants in any event. The only issue is whether it should be on an indemnity basis. I am wholly satisfied that this is an appropriate case for an indemnity basis. The court has made it clear, on at least two previous occasions, and probably more, that the question of electronic disclosure and any issues arising out of it were to be dealt with at the latest by the end of this particular week, preferably earlier. Earlier orders talked about getting it resolved on or by 5th March 2012 ….The claimants and their solicitors, collectively, have had more than enough time to “get their act together” on this… Continue reading

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OrcaTec’s Herb Roitblat gets the measure of the Da Silva Moore Plaintiffs

If you are not yet familiar with the plaintiffs’ arguments about predictive coding (I use the word “about” in its broadest sense, since much of the argument appears to be about some completely different agenda) in Da Silva Moore v. Publicis Groupe & MSL Group, Rob Robinson has helpfully gathered together the formal documents in one place.

In my 7 March article Judge Peck’s Predictive Coding Opinion – Reporting the Reaction, I picked out points made by various of the better-known commentators on the then state of play in the Da Silva Moore Predictive Coding dispute. I ended that article by saying “I can think of two or three commentators, so far silent, whose views will be worth having.”  Today brings us the expected article from Herb Roitblat, CTO and Chief Scientist for OrcaTec, one of those whose opinion I had in mind.

Its title, Da Silva Moore Plaintiffs Slash and Burn their Way Through eDiscovery, carries with it the implication that there is more at stake here than the outcome in this particular case. It also gives a view of the plaintiffs which is shared by many, and which Herb expresses more eloquently than any of us. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation Support, Predictive Coding, Recommind | Leave a comment

Xerox XLS reminds us that technology assisted review works alongside other search tools

My decision to stop reporting every additional layer of comment on Judge Peck’s Da Silva Moore Opinion (see Closing down the Da Silva Moore discussion for now) was made in part because of the diminishing returns we were getting from the focus on this one case, and partly because it was becoming clouded with agendas remote from the technology and from the wider issues addressed by Judge Peck in his Opinion. There is room, however, for some straight up-and-down discussion which might otherwise be crowded out.

An example of this is an article in Metropolitan Corporate Counsel headed Can Technology-Assisted Review Coexist with Strategic Search? This is an interview with Amanda Jones, Senior Research Consultant with Xerox Litigation Services. As its heading implies, the article reminds us that the high-end search tools known variously as predictive coding, technology assisted review et al, is but one of the search tools which are available to help with the identification of the documents which matter and the relegation of those which matter less or which do not matter at all. Continue reading

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Closing down the Da Silva Moore discussion for now

The terms of the plaintiff’s Objections to Judge Peck’s predictive coding opinion in Da Silva Moore v Publicis Groupe deprive the commentators of anything useful to say. It is not merely that the decision goes into limbo pending the District Judge’s ruling, but that serious discussion has been drowned by things which have nothing to do with developments of law, practice and procedure, still less with proportionate justice, and which have not a lot to do with the case itself.

It is not that comment has dried up completely – we’re still seeing sober updates from people whose judgment can be trusted, like eDiscovery Journal and Katey Wood. The only wholly new intervention of value comes in an article from Sandra Serkes at Valora who recognises the common interest of everyone concerned in a rational outcome. My use of the word “rational” connotes nothing partisan – it is the collective good which concerns me, not the fate of either party in the case itself.

There seems to be a parallel agenda running in some quarters, remote from the case itself, with motivation one can only guess at.

I wrote an article on 24 February called In which De Silva Moore brings out the Anglo-Saxon Demotic me which ended thus:

I am, anyway, too busy banging my head against the desk after reading the Declaration of the plaintiff’s expert witness in support of their objection.  How have we come to this?  I give no view on the propriety of the Objection or on the content of the Declaration. I am just wondering what it has all got to do with the “just, speedy and inexpensive” requirement of Rule 1 of the Federal Rules of Civil Procedure, with proportionality, with the obligation of cooperation imposed by the rules and expressly required by the judge, and with the evidence on which this case will turn.

Feedback suggests that my use of the word “demotic” requires some explanation. Strictly, it is an adjective meaning popular or vulgar. It has acquired the informal status of a noun referring to the language or habits of the horny-handed sons of toil. One of the hallmarks of Anglo-Saxon is short, stubby words which make their point without frills or any attempt at elegance, and my headline therefore referred to the sort of language you might expect from a sailor at closing time at a bar in Leith. I have muttered a few more words of that kind on this subject over recent days.

Of the 112 articles sitting in my “must read” folder, many relate to Da Silva Moore. With one or two exceptions with longer-term value, I propose to archive them all until there is something new and useful to say about this case. There is plenty else to write about.

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First Advantage acquires DLR Legal for Multilingual Managed Review

First Advantage Litigation Consulting (FADV) has announced the acquisition of London based DLR Legal, a global managed review services business.  First Advantage already has a strong practice in managing projects involving multiple jurisdictions and multiple languages, and the acquisition of a document review company with specialist language skills and cross-border experience strengthens that practice considerably.

DLR Legal is based in London and Brussels, and was established specifically as a network of multilingual lawyers and paralegals. There is more to this than translation and review – DLR Legal is also able to bring people with appropriate jurisdictional legal qualifications to the project in hand.   This has obvious benefits, not merely for relevance assessments but for the crafting of specific searches and for legal analysis where this is required.

DLR Legal emphasises that it is not a recruitment agency which rounds up teams on demand if it can find them.  Instead, it spends a considerable amount of time locating, pre-screening, pre-interviewing and testing candidates before a project comes up.

I spoke to Drew Macaulay, Director of Business Development at First Advantage, who said that DLR Legal’s ability to field large teams at short notice was the factor which originally caught First Advantage’s attention when they needed to assemble a German-speaking team in London at short notice.  It took DLR Legal one weekend plus one working day, Drew said, to have  25 German-speaking lawyers ready to start work in London. It was not just the speed which counted, Drew added – the quality of their output was very high. The idea of an acquisition grew from there.

First Advantage has its own hosted document review platform, Global RPM, which has strong multilingual capabilities in addition to the other processing, analytical and workflow capabilities expected of modern eDiscovery applications. The  strengthened managed review services resulting from the DLR Legal acquisition allows First Advantage to offer multi-jurisdictional, multi-lingual discovery services whether or not the data is to be processed and/or reviewed in its own platform. Clients may choose to use FADV for the whole electronic disclosure process or just one or two elements depending on their own resources.

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LawTech Futures 2012 – the Future of Legal Conference Marketing

I did not attend LawTech Futures 2012 – the Future of Legal Technology, the conference organised by Netlaw Media and the Orange Rag’s Charles Christian last week. There is enough to do on my own patch without straying into the wider pastures of general legal technology, and I reckoned that I would hear enough about it to save me the trouble of going. The expression “hear enough about it” proves something of an under-estimate, and we have not even seen Charles’ own report yet.

Comprehensive reporting

He can probably save himself the trouble, in fact, thanks to the comprehensive report of Brian Inkster of Inkster’s Solicitors, on his Time Blawg. Headed LawTech Futures 2012 Reviewed: the Search for the Holy Grail of Legal Technology Conferences has Begun!, Brian’s report amply justifies my decision to wait and take it all in at second-hand. When you add the enormous quantity of high-quality photographs which have been posted –  and this is just the first batch apparently – physical presence was clearly unnecessary.

Charles ChristianI like the idea, incidentally, of photographing Charles Christian from below with half his face in darkness as he delivered his Brave New Technology Future speech – the Ghost of Christmases which will never come if you don’t get your act together, perhaps.

The already apocalyptic effect of this is enhanced by converting the photograph to black and white.

Good marketing

Some broader points arise which are of importance to anyone organising conferences aimed at lawyers and law firms. The marketing was brilliant – it obviously helps  that Netlaw Media and Charles Christian are both professionally concerned with marketing and promotion in this space and have the skills, the contacts and the platforms to reach both sponsors and delegates. The post-event marketing, which is important for more reasons than the attraction of next year’s sponsors, has maintained that high-quality pitch. Continue reading

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The CPR Standard Disclosure test is a strict one says the Court of Appeal

Disclosure in UK civil proceedings, with or without an “e” at the front of “disclosure”, is not a game for amateurs, raising serious points about the strict interpretation of a deceptively simple-looking rule as well as practical considerations – and that is before you get to the technology. If UK lawyers can learn something from Shah v HSBC Private Bank, US litigators will see one reason why UK disclosure is so much narrower in scope than the bloated excesses of US discovery.

I am obliged to Ashurst for the case summary which tipped me off to the judgment covered here. The case is Shah & Anor v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154 (13 October 2011). The claim itself concerns a delay in banking transactions which occurred because the bank suspected money-laundering and felt obliged to make authorised disclosures under the Proceeds of Crime Act 2002.

The application which came before the Court of Appeal concerned disclosure under the Civil Procedure Rules. Two questions arose: did the bank’s standard disclosure obligations require it to reveal the names of the bank employees who were involved? If they did, was it entitled to preserve that anonymity by redacting those names on the ground of public interest immunity?

The court (the main judgment is from Lord Justice Lewison) found for the bank on a strict interpretation of Rule 31.6, the definition of standard disclosure; the PII point effectively dropped away.

The paragraphs numbered down to 18 are a recital of the underlying facts. The claimants wanted to know the names of the individual employees involved in complying with the POCA requirements and with the bank’s internal procedures. The question arose as to whether this information was “relevant” although, as we shall see, this is in fact the wrong question. Continue reading

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Recent eDiscovery Posts on Google Plus

Arguments continue as to the value of Google Plus as a FaceBook rival. I don’t much care about that, only about its ability to attract wider audiences. It is working for me (well, something is) and I continue to put short posts on my Google Plus page, cross-linked both from occasional summary posts here and from my web site.

Quite apart from the SEO (Search Engine Optimisation) value, this allows me to cover a wide range of subjects and pick up more of the many useful articles which come by without triggering an email to my Blog subscribers with every addition.

Recent additions on Google Plus include the following:

Applied Discovery and Relativity announce strategic partnership

FTI Consulting, Guidance Software and Nuix in the Above the Law Research Corner

“Shit” e-mail drops midwife in the shit

IAAC Guide to Forensic Readiness for Organisations, Security Advisers and Lawyers

InfoRiskAwareness – Mark Surguy of Eversheds on Meaningless Information

Significant changes to Singapore eDiscovery Practice Direction

Taylor Wessing adds Singapore firm RHT to its network

Catalyst summarises Judge Peck’s Computer-Assisted Review primer

Recommind’s Howard Sklar on diminishing marginal returns in document review

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Posted in Catalyst, Discovery, eDisclosure, eDiscovery, Electronic disclosure, FTI Technology, Guidance Software, KCura, Predictive Coding, Recommind, SEO | Leave a comment

Predictive coding? Technology-Assisted Review? What is the right name?

It is perhaps not surprising that we have yet to arrive at a universal name for the set of algorithms and processes which lie at the higher end of the eDiscovery / eDisclosure market. Barry Murphy addresses this in an eDiscovery Journal article called Technology-Assisted Review: What Should We Call This Market?, showing by his article’s title that one cannot even open the discussion without picking one of the variants to establish what the subject is.

If I favour predictive coding, it is because that is the term used by the first entrants into the market, becoming a useful label more or less divorced from the bare meaning of the words. Those who came afterwards wanted simultaneously to claim their place at what was evidently becoming the top table whilst simultaneously seeking differentiation – a differentiation which the first-comers are equally keen to preserve. Barry Murphy identifies some of the terms and gives us a poll in the hope of steering us towards a consensus. Continue reading

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Much Ado About eDisclosure Defects – the West African Gas Pipeline Judgment

He that is without sin among you, let him first cast a stone

You will all by now have seen or heard about Mr Justice Ramsey’s judgment in West African Gas Pipeline Company v Willbross Global Holdings Inc in which the claimant was ordered to pay certain costs to the defendant arising from a series of defects in the claimant’s electronic disclosure. You get some idea of the scale of it from the fact that the judge felt unable to quantify the costs and sent them off for detailed assessment, ordering £135,000 be paid on account.

So what? Yes, I mean it. So what? What new law is there here? What do we learn from this case about electronic disclosure that we did not know before? Disclosure on the scale required for this case is a difficult and complex business. Lawyers owe a strict duty to the courts and to their opponents as well as to their clients. The parties themselves have onerous duties.  Massive sums are spent on both sides, both by those giving disclosure and those dealing with what comes in on exchange. The potential for it all to go wrong is very high, and the prime responsibility falls on the lawyers with the conduct of disclosure. Continue reading

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Fulbright focuses on transparency in predictive coding review

A version of the law of diminishing returns is relevant to one function of predictive coding – its use for prioritisation makes it possible to calculate how much value you are finding relative to the number of documents you are reviewing. The same applies, perhaps, to articles about Judge Peck’s decision in Da Silva Moore v Publicis Groupe, as each one finds it harder to bring something new to what has already been covered.  There is still room to add value to the subject, however, and this is not the last of my articles on the subject.

David Kessler, co-head of  the eDiscovery and Information Governance Practice Group at Fulbright and Jaworski LLP, and a good chap (a high form of approbation to the understated British), is the author, with others from the firm, of an article called Judge Peck Approves a Discovery Process That Includes the Application of Predictive Coding to Identify Responsive Documents. The heading puts the word “process” in italics to make it clear, as Judge Peck did, that the manner of conducting the discovery exercise is what matters here. Continue reading

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Appearances count for Equivio and iCONECT

The two companies named in my heading, iCONECT and Equivio, are in fact related in that there is a partnership between them which appears from both their web sites. That is a coincidence so far as this article is concerned. They are grouped together because both have recently launched visual enhancements to their applications and their web sites which are worthy of note.  They have both made enhancements, also, to the technology in their applications, but I am here concerned only with what they look like and how they work from the point of view of a potential customer who wants to know about the products.

If you think that this is a superficial approach to marketing business tools then think again. I  do not suggest that law firms and corporations make purchasing decisions on the strength of web site artistry, because any serious player (and these companies are interested only in serious players) will delve well below the surface before buying anything. I am not, either, suggesting that their rivals in the same space are backward or deficient. Marketing, however, consists in part of catching the eye, and both these companies have certainly achieved that.

Let’s start with Equivio, who have simultaneously released a user application, Zoom, and a web site which have torn up the standard spec for both. Zoom, which combines Equivio’s near-duplicates, email threads and Relevance applications, is crisp and white. It has as little as possible on the screen at any one time, and “intuitive flow” (their choice of words, but I’m happy to endorse it) from one stage of the process to another, and the use of graphics wherever possible to give clear guidance as to the present status of the processes. Continue reading

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Contract can lie in email threads or multiple emails

I am, on the whole, fortunate in the judgments which I have to read. Most of them involve procedural failures and breaches of what are, frankly, fairly straightforward obligations. You do not have to be a lawyer or a technologist (let alone both) to understand the provisions of Part 31 of the Civil Procedure Rules and its practice directions, nor the US equivalents. I quoted with approval the assertion by Allison Stanton, eDiscovery Counsel at the US Department of Justice  that “[Her] 5-year-old can tell by page 3 of an opinion that it is going to end in sanctions” (see Compare and Contrast: US and UK attitudes to Preservation Sanctions).

That is not, of course, to say that electronic disclosure / electronic discovery is easy, nor to suggest that there is no room for fundamental disagreement about the application of the rules and precedent to any particular case. The law itself, however, is pretty straightforward.

The same cannot be said for the matters which came before the Court of Appeal in Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd & Anor [2012] EWCA Civ 265 (09 March 2012) which addresses multiple matters of the law governing commercial contracts which, separately and together, explain why the commercial bar attracts some of the highest intellects. The central issue, however, and the reason why HHJ Simon Brown QC sent it to me, appears in the opening paragraph, which reads as follows:

The principal question which falls for decision in this case is whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial transactions for a contract of guarantee to be contained in a single document, and it is no doubt convenient that a guarantee should be evidenced in this way. The question however which arises in this appeal is whether it must. Christopher Clarke J, in the Commercial Court, held that it need not – [2011] EWHC 56 (Comm); [2011]  1  WLR 2575. He held that an enforceable contract of guarantee may indeed be found in a properly authenticated series of documents. His decision is said to have been unorthodox and contrary to the understanding of commercial men. It is said to have caused alarm. Continue reading

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Patel v Unite – order for investigation of deleted Internet forum

Here is an interesting judgment, Patel v UNITE the Union [2012] EWHC 92 (QB) (27 January 2012), which Professor Dominic Regan has pointed me to. The target of postings on a union Internet forum alleges defamation and harassment. The union claims that the forum has been deleted and that they cannot identify those who made the postings. What help will the court give to the alleged victim in his efforts to identify those who wrote about him?

The story, put as briefly as possible, is that anonymous union members made observations about Mr Patel which give rise to potential causes of action against them. He claims both that the postings amount to actionable libels and, in the alternative, that he has a cause of action under the Protection from Harassment Act 1997.  The forum had warned its members that their true identities might be disclosed to third parties, subject to relevant data protection and privacy rights.

Patel obtained a court order against Unite requiring them to make a reasonable search for the information and to serve a witness statement. Unite claimed that the information was no longer available, and resisted an order for examination of the relevant servers on grounds which included the data protection and privacy rights not only of those who made the postings but of everyone else who had used the forum.

The judge concluded that he had power to make such an order on the basis that, whilst identification of the alleged wrongdoers may not be achieved as a result, it certainly could not be achieved without the order. Protection against intrusiveness would be achieved by the appointment of an independent expert agreed on by the parties who would provide nothing more to Mr Patel then “information which identifies those responsible for the posts complained or which explains why (if that be the case) they cannot be identified”.

This, said the judge, met the requirements both of proportionality and of protection of privacy and data protection rights.

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Epiq Insights – an eDisclosure newsletter from Epiq Systems in the UK

Relatively few of the eDisclosure / eDiscovery newsletters focus on the UK, so it is good to welcome Epiq Insights from Epiq Systems which is now available as a web page as well as by subscribing to an e-mail. The current edition is here.

It includes links to articles which are either about the UK or which, whilst having a US origin, are relevant to those responsible for the management of UK eDisclosure exercises.

Some of them are things I have already written about –  November’s Metropolitan Corporate Counsel article on predictive coding, for example, and reports of the Epiq Showcase and of the panel on the Challenges of Cross-Border Regulatory Investigations. Others are new to me and it is helpful to be able to pass them on in one go by pointing you to the newsletter.

Of the ones I have not seen before, I refer you in particular to the New Law Journal article on right-sizing the outsourcing of document review written jointly by Epiq’s Saida Joseph and Mark Surguy of Eversheds. Its conclusion is that the on-shore / off-site model for document review is the one which strikes the best balance between cost and risk.

This is a relatively new model for the UK market and one which has attracted a lot of attention very quickly. I gave a video interview yesterday for the College of Law. Quite often when I do these things, I am invited to say what I want to talk about. The College of Law works the other way round – they detect the trends which interest their audience and send me the questions. One of this year’s questions, appearing for the first time, was about managed review Continue reading

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My Google Plus Posts to 11 March on eDiscovery and related subjects

This post links to my most recent short posts on Google Plus except for those which merely link back to this site.

CY4OR on children and Facebook

Dean Gonsowski of Symantec interviewed on predictive coding

SEC’s Patrick Oot on eDiscovery dealings With Government Agencies

The balance between an organisation’s interests and employee privacy

Conflicts when US companies must comply with EU data privacy laws

The SFO says that Self-Reporting has doubled since the Bribery Act

Ralph Losey takes the long view on Legal Search and Document Review

More of these, and more about this approach, and why it is valuable, shortly.

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Posted in Bribery Act 2010, CY4OR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Symantec | Leave a comment

Nigel goes over the top on his bottom for Help for Heroes

Nigel Murray, managing director of Huron Legal in London, is limbering up for his annual bike ride to raise money for Help for Heroes.

This year the ride is across the Great War battlefields of north-eastern France.  It involves 375 miles in five days, no mean feat for a man of a certain age whose posterior is more used to a comfortable seat at a desk, in an aeroplane or in a restaurant, and who can often be found with a beer, a cigarette or both in his hands.

Nigel has raised over £15,000 over the three years in which he has done this ride. This year he is to be joined by a team from Huron’s London office – a fine instance of leadership by example.

TrenchesI used the expression “over the top” in my heading for a reason. It has come to be associated with divas having hissy fits, with the extravagance of some electronic discovery or with the faux outrage of the Daily Mail as it incites its readers to get worked up over some triviality. The expression in fact derives from those same trenches which the Help for Heroes cyclists will see as they cross France.  Nothing one can imagine could equal the terror one would feel, and the courage one would need, waiting in a trench for the dawn whistle which was the signal to climb over the parapet and out into the shelling, machine-gun fire and barbed wire which lay over the top – officers and men in the shared democracy of death and injury. Continue reading

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Postscript to Dominic Regan interview on Jackson and costs management

The transcript of my interview with Dominic Regan (see Professor Dominic Regan on why the Jackson Reforms mean the biggest ever upheaval for UK litigation) seems to have attracted some attention. There are two follow-up links in which you may be interested, both to points referred to during the interview.

The first is Dominic’s interview with Lord Justice Jackson which he has now written up for New Law Journal under the heading Jackson on Jackson. Those with an interest in electronic disclosure will focus on two things – the promise of training for judges in costs management and this blunt warning to practitioners towards the end of the article:

They should start to think about costs budgeting now and also look to embrace technology. The days of paper are numbered.

Many in my profession, I know, treat a deadline as the starting gun. I remember fondly my conversation with a law firm partner six months after the UK Bribery Act came into force. I mentioned it as a reason for lawyers to become acquainted with the technology which exists both to identify deviations from the norm in a proactive way and to enable efficient reaction to requests by regulators or prosecutors. “The Bribery Act”, he said. “Ah, remind me…”. Continue reading

Posted in CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation, Lord Justice Jackson | Leave a comment

Getting the eDiscovery word out there with WordPress and Google Plus

One does not have to be obsessive about web rankings to be interested in the reach of one’s blog posts, particularly in an industry which constantly evolves – or, as recently, takes the occasional big jump. Can one be heard beyond one’s regular readers, in an area of business in which everyone has something to shout about?

Idle curiosity made me do a search yesterday morning on Google.com for judge peck da silva moore. I was pleased to see that an article of mine – published less than 24 hours previously and in competition with many US articles – appeared on the first page of search results. A search for peck predictive coding, again in Google.com, had my article at the top.

A post by Millnet’s Charles Holloway (or, strictly, the home page of Millnet’s blog) also appeared on the first page of the first of those searches. Amongst the things Charles and I have in common (being English solicitors with an interest in US eDiscovery is a prerequisite for what I am talking about) is our use of WordPress as our blogging platform. I chose WordPress originally (this was in 2006) because tests showed that it had better SEO (Search Engine Optimisation) than Google’s own blogging platform. Continue reading

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A UK view of LegalTech from Andrew Haslam

Each year, Andrew Haslam of Allvision writes a comprehensive report of LegalTech through the eyes of UK visitors. I say “visitors” in the plural because Andrew solicits contributions and views from others and splices them together.

This year, it seems, contributions and views were not the only thing he picked up from LegalTech – he returned with a debilitating infection which is only now fading away. That may have affected the timing of this report, but has done nothing to lessen its quality. It can be found here.

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Professor Dominic Regan on why the Jackson Reforms mean the biggest-ever upheaval for UK litigation

I interviewed Professor Dominic Regan last week about pending developments in UK litigation. Dominic Regan is speaking at IQPC’s Information Governance and eDisclosure Summit, which takes place in London between 14 and 16 May, where I will introduce and moderate the session. In this interview, Dominic Regan foreshadows the major changes which he will talk about at the Summit.

Chris Dale: Hello, I’m Chris Dale of the UK-based eDisclosure Information Project, which carries information about electronic disclosure – electronic discovery as every other jurisdiction calls it – between judges and lawyers and clients and suppliers. I have with me Dominic Regan who is a solicitor, writer, broadcaster, and an adviser to Lord Justice Jackson on cost management, and on the Costs Management pilot. He is also a professor at City University, London. He provides litigation training to a number of Government departments and to many law firms throughout the UK, and hosts webinars, writes, and generally spreads the word about case management and other aspects of litigation. Professor Regan is due to speak at IQPC’s annual Information Governance and eDisclosure Summit, which takes place in London between 14th and 16th May. His subject there is 2012 – The Most Significant Year in the History of eDisclosure? Like Richard Susskind’s book title, The End of Lawyers?, this has a question mark at the end of it. From where I sit I think that 2012 will indeed be the year of disclosure.

We have just seen a significant judicial opinion in the US by Judge Peck in the Da Silva Moore case, which gives judicial blessing to the use of advanced technology known as predictive coding. The UK Courts have just penalised a party in costs for its disclosure failures, which will help focus minds on the risks of inadequate disclosure. The Richard Susskind line – that law firms will see their traditional practices whittled away by what he calls disintermediation, as others offer the components of litigation tasks at lower and more certain costs – is something else that solicitors have to look out for. And we have the Cost Management pilot coming out of Birmingham, and other aspects of Lord Justice Jackson’s proposals, which are now heading into law.

Dominic, let’s start with a very broad question about Lord Justice Jackson’s reforms. How important are they? Continue reading

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Judge Peck’s Predictive Coding Opinion – reporting the reaction

It needed no great prescience to anticipate a flood of articles about US Magistrate Judge Andrew Peck’s opinion in the Da Silva Moore predictive coding case (Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. February 24, 2012). I made an early election to stand back before writing about it, reckoning that I do you better service by pointing to the best of the early reactions and then taking a broader approach myself, not least in jurisdictional terms.  I may challenge from time to time the idea that the US is in any sense “ahead” of the rest of us in terms of rules and processes, but there is no challenge to the suggestion that new technology gets its most exacting trials in the fire of the Federal Rules of Civil Procedure, and other jurisdictions can observe and learn.

In what is, I think, the only UK article thus far apart from mine, Charles Holloway of Millnet reckons, in an article headed In the jaws of ediscovery, that an English judge would take the same view as a US judge in similar circumstances. There are judges and judges of course, on both sides of the Atlantic, but I think Charles is right. Millnet know whereof they speak in this regard, having been involved in the only UK predictive coding case whose outcome has been written up publicly – see my article Two predictive coding case studies emphasise time and cost savings, which involves a US case involving Epiq Systems well as Millnet’s UK one.

The present article points to some (by no means all) of the commentary which has appeared already, allowing me to go on to take a slightly different approach in my separate article.

The best plots are those which can be summarised in a few words. “Father murdered, uncle bad, Ophelia hot, Hamlet mad, all dead” tells you all you need to know about Shakespeare’s most famous play.  The equivalent in respect of Judge Peck’s opinion came from Warwick Sharp of Equivio who quickly boiled the whole thing down to this: Continue reading

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Before they were famous video – Maas, Whitaker, Peck and Waxse on Predictive Coding

A LegalTech panel organised by Xerox XLS gave us the opportunity to hear four well-known judges discuss the use of technology for eDiscovery. Only one of us knew that the subject would become headline news within days, as Judge Peck moved towards his important Opinion in the Da Silva Moore case.

The trouble with predictive coding, as we all know, is that no one can agree on the numbers. Were there 17 sessions at LegalTech in which technology-assisted review played a big part, as somebody said? Or was it 21, as somebody else said? It depends on some collaborative assessment as to what we are measuring.

The number of conference sessions and articles about predictive coding at and around LegalTech did not seem to me to be excessive having regard to its importance and its potential as it then appeared. I went to only one of them, organised by Xerox Litigation Services, my choice dictated partly by the composition of the panel and partly because it was an early morning breakfast session, allowing me to fit it in between an even earlier breakfast and a packed day.

Xerox Judicial Panel

The panel, from left to right in the picture above, comprised US Magistrate Judge Frank MaasSenior Master Steven Whitaker from the UK, US Magistrate Judge Andrew Peck, and US Magistrate Judge David Waxse. The moderator was Gabriela Baron of Xerox XLS. Continue reading

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1 March on Google Plus

There is no doubt that the hot topic at the moment is predictive coding following Judge Peck’s written Opinion of last week.

The rest of the eDiscovery world does not, alas, take time out to clear the stage for any one big topic, and I have captured on my Google Plus page some of the articles and points which have arisen in other areas. It is like bailing a leaky boat – as fast as I get things out of my store of interesting things to come back to, more comes in at the bottom.

I have no particular ambition to catch it all, and most of it is readily available as it happens on Twitter. Whilst we now know that Twitter is flogging off our old tweets for advertisers to mine, the reality for most of us is that what rushes past is lost as soon as it reaches the bottom of the Twitter screen. It seems worth capturing some of it as it goes. Today’s articles include, in no particular order:

AccessData describes the new Summation hardware and architecture

Second Phase of Nuix Proof Finder – work, learn and raise money for charity all at once

The UK Bribery Act – are you ready to explain tone at the top

Registration opens for ILTA 2012 in Washington D.C: ac2dc

Legal Technology Insider Empire expands to AsiaPac

KM World: 100 Companies which matter in Knowledge Management

Judge Peck and Judge Facciola lead mock trial on user authentication

eDJ Group and InnoxCell join forces for Hong Kong eDiscovery Exchange

The common interest of legal and IT in e-mail management

That is a pretty wide range of topics to fit under the general heading eDiscovery, and barely scratches the list of things to cover.

In between all this, and rather less seriously, a three-way exchange was running on Twitter about Mr Cameron, Rebekah Brooks and the ex-police horse Raisa. I wrote about that here:

Horse Nonsense on Twitter

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An acquisition and an appointment point to Epiq consolidation and service delivery

Stories happen when they happen, and the copy / paste news sites and story aggregation people do a good job at rushing the contents of the latest press release to your virtual door. G K Chesterton’s Father Brown famously talked of hiding a leaf in a forest or a pebble on the beach and, whilst I must not rely exclusively on 19th and early 20th century fictional detectives for my parallels (it was Sherlock Holmes earlier this week), I am not much interested in the Gadarene rush to regurgitate press releases at the same time as everyone else, based on the same (and generally sam-ey) texts. I’d rather not just be another leaf in the forest.

What makes an industry story interesting is its place in a context or a trend – how it moves things along or provides factual evidence of an otherwise anecdotally-based assertion. Two recent announcements by Epiq Systems warrant more than merely passing on the press releases. One is Epiq’s acquisition of De Novo Legal which took place between Christmas and New Year, a time when, as you would expect, my page views graph shows a dip to less than half of its normal level; accordingly, I just passed on the PR, saying that I would come back to the story in due course. The appointment of David Fryer as Epiq’s General Manager of UK Operations was announced just before LegalTech, when industry minds were focused on product releases and all the usual pre-show hype. It warranted more than being just another leaf in that forest.

I spoke this week to David Fryer and to Greg Wildisen, Epiq’s International Managing Director, to find out more about David’s appointment and about De Novo. Continue reading

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The Convergence of eDiscovery and Information Governance – the movie

I have referred more than once to the webinar which Nuix organised just before LegalTech with the title The Convergence of eDiscovery and Information Governance. I moderated it, and the panel comprised Craig Ball, Attorney and Forensic Technologist, Stephen Stewart, CTO for Nuix and David Cowen, Managing Director for The Cowen Group.

We ran it also as a session at LegalTech, and I did not really focus on the significance of the camera at the front of the audience. We were in fact being filmed, and the result is now on YouTube in four parts – the first is here, and the rest follow automatically.

I referred in opening to a comment made by one of the people who listened to the webinar, who thought that I should have let the speakers say everything they had to say about their subjects. Each of these panel members could comfortably fill an hour on his own and, as I pointed out, we had even less time for the panel session than we had had for the webinar. The only real challenge for a moderator running a panel of this calibre is to bring the session to a close on time and with all the slides covered; that occasionally requires a guillotine.

There was some overlap between the subjects which we covered and a dinner hosted by Nuix the previous evening. I wrote about that in a post called Innovation and informed risk-taking are an eDiscovery duty which defines part at least of my agenda for the coming year. Continue reading

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EU promises data protection savings and reduced burdens on business

The European Commission has collected together information about its proposed reforms of the EU Data Protection Rules, including the press release of 21 January, the press conference with Vice President Viviane Reding of the same date, and a number of fact sheets, surveys, legislative texts and other information.

For those who like their source material raw, this is the place to look.

Vice President Reding has followed that up with an article on CNN called How Europe is Dealing with Online Privacy. Call me cynical, but if her “one-stop shop for businesses to deal with regulators”, and the employment of Eurocrats to run it, results in the promised reduction of administrative burdens and a saving of €2.3 billion a year for businesses then I will eat my proverbial hat. Continue reading

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CY4OR takes social media advice to HR and the workplace

Much of the proactive advice which companies need about eDisclosure and data security is aimed at IT departments who have the job of managing data, and at legal departments who have responsibility for the company’s potential eDisclosure obligations.

HR departments are often overlooked, yet they have responsibility for the contracts which define employees’ responsibilities and for initiating many of the investigations into the conduct of employees.

The ease with which information can now be created and disseminated via various social media outlets makes it the more important for HR departments to understand the threats which lie in the use of social media, and to know what can be done both to pre-empt them and to detect and investigate breaches of the law or of company policy. Continue reading

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Predictive Coding’s Silver Blaze: the dogs who didn’t bark in the night-time

Perhaps the only person who will understand my heading instantly is the judge whose Opinion in Da Silva Moore v Publicis Groupe is at the centre of eDiscovery attention this week.  US Magistrate Judge Andrew Peck is as much an authority on Sherlock Holmes as he is on the use of technology in litigation, and will recognise the story of the eponymous horse and the strangely silent canine.

Well, that’s broken the first two rules of good web writing – follow an obscure heading with an opening paragraph which takes the reader yet further away from comprehension. What is the connection between horses, dogs and fictional detectives, on the one hand, and an important electronic discovery Opinion on the other?

Silver Blaze is a race-winning horse of whom are great things were expected. He disappears on the eve of a big race and his trainer is found dead.   The following dialogue takes place between Holmes and the detective, Gregory:

Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”

On Friday afternoon, Judge Peck issued an Opinion and Order in the Da Silva Moore case in which he said “This judicial opinion now recognises that computer assisted review is an acceptable way to search relevant ESI in appropriate cases.” You will hurry, no doubt, to see what Recommind, the most vociferous proponent of predictive coding, has to say; this Opinion is important to them as it is to anyone else with an interest in reducing the costs of eDiscovery, and they are one of the more voluble users of social media to get their messages out. Nothing.

You know, perhaps, that Ralph Losey always writes on a Sunday; he wouldn’t miss an opportunity to write up an Opinion like this, would he? You find instead  an article called Picking Battles and Knowing When Not to Speak; it has an animated version of Ralph, dressed in pigeon-fancier’s flat hat, braces and (apparently) nothing else, describing himself as a “happy guinea pig”, followed by a few worthy quotations and links. What is going on? Continue reading

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In which Da Silva Moore brings out the Anglo-Saxon demotic in me

I am not going to try and compete with the Clearwell / Symantec writing team as it comments on developments in the Da Silva Moore v Publicis Groupe case, the first one in which the use of predictive coding, the most exciting eDiscovery technology development of our time (I speak generically here, not of any one product) is debated in front of one of the few judges who understands it and the contribution it can make to cost-effective eDiscovery.

Yesterday brought us Matthew Nelson’s article Judge Peck Issues Order Addressing “Joint Predictive Coding Protocol” in Da Silva Moore eDiscovery case. Phil Favro takes up the baton today with Plaintiffs Object to Predictive Coding Order, Argue Lack of Transparency in the eDiscovery Process. Both articles give clear recitals of the state of play, hyperlinked to appropriate sources, and I have a big enough list of articles to write without treading over the same ground.

I am, anyway, too busy banging my head against the desk after reading the Declaration of the plaintiff’s expert witness in support of their objection.  How have we come to this?  I give no view on the propriety of the Objection or on the content of the Declaration. I am just wondering what it has all got to do with the “just, speedy and inexpensive” requirement of Rule 1 of the Federal Rules of Civil Procedure, with proportionality, with the obligation of cooperation imposed by the rules and expressly required by the judge, and with the evidence on which this case will turn.

Sod all, I’d say.

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Words are the easy bit: EU Parliament debates EU – US data privacy concerns

An article on EUObserver.com reports on a debate last week in the European Parliament which highlighted the conflict between US demands for data and EU privacy legislation.

The article’s title is Commission Downplays Parliament EU–US Data Privacy Concerns – “downplays” being Eurospeak for “brush it under the carpet and pretend it is not a problem”. Justice Commissioner Viviane Reding’s answer that a US law enforcement authority would have to use “existing channels of cooperation and mutual legal assistance agreements” to get data from companies in the EU does not reflect the view taken hitherto by those authorities when they make their demands. “Stand and deliver” better describes their approach.

It is not just US authorities. As an MEP pointed out, the “existing channels” do not help much when a US civil court requires the disclosure of data stored in the EU. Fears that US law could have “extraterritorial effect within Europe” and that European laws “could be over-ruled by third country laws” are legitimate fears as a practical and pragmatic matter – there is no need for US courts to assert expressly the primacy of US law when they can simply punish a party for failing to produce documents.

One MEP pointed out that it would be “ironic if it were easier for third countries to process European citizens’ data in their territory than for European entities to do so in Europe”.  It is not really a matter of one being “easier” than the other. The data is processed in the US in possible breach of EU laws either because the parties and courts are unaware of the restrictions or because the parties take the view that the Scylla of sanctions is more palatable than the Charybdis of EU fines and other penalties.

As I have reported elsewhere, we are beginning to see an appreciation on the US side not only that the comity of nations requires respect for the laws of foreign jurisdictions but that a combination of cooperation, transparency and technology ought to allow a reconciliation between US demands and EU restrictions, with recent recommendations from both the ABA and the Sedona Conference to that effect. Continue reading

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Digital Reef adds Predictive Priority, enhances Relativity integration and opens its processing power to LSPs

Digital Reef is offering legal service providers the opportunity to make use of its SaaS processing and early case assessment tools on a revenue sharing basis.  This should help LSPs who find themselves with more work than they can handle and who traditionally have the choice between struggling to manage it all or passing the work to someone else, with the risk of losing the client as well as the fee.

The Digital Reef service – the press release is here – allows LSPs to put their own brand label on processing which is actually undertaken on Digital Reef’s servers, which are capable of handling 17 Tb of data per day.

As I have written elsewhere, UK eDiscovery solutions provider CY4OR has recently acquired the business of eOrigin. That brought with it Nick Pollard as CY4OR’s new head of eDiscovery together with eOrigin’s role as a Digital Reef partner. Nick Pollard said of the new Digital Reef program:

“as a leading provider of Digital Reef to the UK market, we are excited about the innovations that the company is making.  CY4OR is already rolling out a similar model in the UK which is generating a lot of interest amongst Litigation Support teams.  We have the eDisclosure tools and resources in place now to offer our clients the software as a service (SaaS) model and believe it will enable law firms to reap rewards in an increasingly competitive market”.

This is one of a spate of Digital Reef announcements recently. Two press releases came out at the end of January, one announcing closer integration with Relativity and one about Digital Reef’s new predictive priority functionality.  I knew about the latter – indeed I am quoted in the press release – but announcements made once LegalTech has started tend to get overwhelmed by everything happening at the show and in its aftermath (I still have one panel to report on,  and want to come back to the one new application which I actually saw in New York).

These are free-standing developments, each with its own value for what Relativity’s Andrew Sieja describes as giving users “control to construct the best eDiscovery solution to meet their needs”. When the new analytics at the front end are added to the service offered to LSPs and to Relativity integration, Digital Reef seem to have an integrated business plan as well as a technology solution.

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Recent posts on Google+ to 23 February

I intend to start periodic cross-links from here to my Google+ page to make sure that my posts there get picked  up.  The Google Plus posts are in no sense of lesser importance than what appears here, nor are they taking content away from the blog – I have done more blog posts so far in 2012 than by the same date in 2011.

They allow me quickly to cover a wider range of topics and, specifically, to point to other articles of interest with something slightly more substantial than a re-tweet.  If many of them have a US origin, that reflects the quality, as well as the quantity, of the material which derives from the US. Much of it has application in any jurisdiction where electronic discovery/disclosure is required.

The present interest in predictive coding, in information governance, and in data protection and privacy, for example, are all things which ought to be seen important in the UK as well – and elsewhere. If Singapore suddenly seems to be in the news, that reflects what I am hearing anecdotally as well as what I read.

A subsidiary purpose is the improvement in the SEO (Search Engine Optimisation) of both my own sites and those to which I link. It may be a coincidence, but my daily count of page views on the blog has risen from last year’s average of 189 to 263 since I started using Google+

The Google plus page is here. Continue reading

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Applied Discovery sees an early Valentine from Judge Peck

Applied Discovery has a double interest in the Da Silva Moore v Publicis Groupe case which came before Judge Peck just before Valentines Day. As a software provider, it offers technology-assisted review (which it calls “predictive tagging”) powered by Equivio->Relevance as part of its Leverage Suite – the press release from last August is here. Applied Discovery is also one of the best  commentators on eDiscovery practice and the developments which matter to its clients, with weekly updates and good original content.

Both of these interests come together in an article called Did Judge Peck Send Us an Early Valentine? by Applied Discovery’s Ignatius Grande, which picks out points of interest from the published transcript of the Da Silva Moore eDiscovery hearing.  It would be fair to say that many of the essential characteristics of a Valentine’s Card are missing –  the words “Stop whining and stop the sandbagging. This goes for both sides. Get along.”,  whilst definitely about relationships, are not what you would hope to find on the doormat on 14 February.

Ignatius Grande rightly picks out the strands of wider significance: it is important to hear a judge say on the record that technology-assisted review “certainly works better than most of the alternatives, if not all of the alternatives”;  lawyers also need a reminder that the goal is not perfection but making the process “significantly better than the alternative without nearly as much cost”; the emphasis on the human input –  technology assisted review “is only as good as the training that it gets”, and on the obligation to cooperate, are also important. Continue reading

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US cases which may shape the future of predictive coding

Matthew Nelson of Symantec has an interesting article on Forbes.com this week. Called Federal Judges Consider Important Issues That Could Shape the Future of Predictive Coding Technology, it considers the possible impact of two cases presently before the US courts. Don’t look away, you UK litigators – the principles apply to you as well.

One is Da Silva Moore v Publicis Groupe et al., where the parties agreed to use predictive coding technology but have been unable to agree how it should be used. I have mentioned this case before, but am keeping my powder dry on it until we have the hoped-for written opinion from US Magistrate Judge Andrew Peck.

The second case is one I had not come across, Kleen Products LLC v Packaging Corporation of America, et al, where the discovery issues are being heard by US Magistrate Judge Nan Nolan. Here, one party seeks an order requiring the other to use predictive coding. The usual form of these disputes (going wider than any particular technology) is that Party A chooses a technology and Party B challenges its use, with the dispute generally coming down to how the technology was used rather than the particular choice of application.  Now we have Party A seeking to compel Party B to adopt a particular type of application.

Matthew Nelson touches on a number of interesting points. One might be diverted by the plaintiff’s suggestion that  predictive coding is akin to a car where the defendants want merely to use “the best available horse”.  A couple of well-chosen Craig Ball quotations are brought in, one on court validation showing why I don’t seek to compete with Craig for colourful imagery (even I have never managed “court validation” and “steaming pile of crap” in the same sentence), and one asserting correctly that “the integrity of the process hinges on the carpenter, not on the hammer.” Continue reading

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Once again, the handsome man comes out badly in a Losey film

The good-looking, self-confident male never does well in a Losey film. Don Giovanni is hurled down into Hell as Donna Anna has her revenge. Who can forget the handsome face of William (Michael York) as his girlfriend’s (another Anna as it happens) pointed heel stabs down into his face as she escapes from the smashed car in Accident. James Fox in The Servant, Alan Bates in The Go-Between – no, the men do not come out well in a Losey film, and the better-looking they are, the further they fall.

Sorry? Excuse me a moment. Oh, I see. Wrong Losey. They told me to knock out a few words about how the male character is beaten by the female lead in the latest Losey film, and I naturally assumed that they meant Joseph Losey. That image of the elegant heel in the bloodied face seemed just right. I saw Accident shortly after it came out in 1967 and it sticks in the mind somewhat. If I had stopped to think, I would have realised that it was unlikely that a man born in 1909 was still directing films anyway.

Back to the beginning. The good-looking, self-confident male never does well in a Losey film. From the moment the cameras roll in the the latest Ralph Losey thriller, it is clear that the arrogance of the male character will be defeated by the cool self-asurance of the female lawyer who is pitted against him as they argue about preservation and search efforts. Its title, Animation Showing How Not to Cooperate in an eDiscovery Conference may lack the snappiness of the other Losey’s film names, but you can’t have everything.

The male lawyers’ reiterated line “Take it or leave it” makes the lady (she’s bound to be called Anna as well) angry. She doesn’t settle for trivial revenge like Hell fires or stamping on his face – she is off to the judge.

Full marks to Ralph Losey for his latest animated way of making eDiscovery accessible.

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Huron eDiscovery Panel at LegalTech as the cross-border climate begins to change

My wide-angle lens is being repaired, so I have no photograph of the panel which Nigel Murray of Huron Legal moderated at LegalTech. There were eleven of us at the table for two consecutive sessions with the title A GC’s Nightmare – a US EDiscovery Request into Europe. The first part outlined the problems raised by the EU’s attitude to data protection and privacy and its conflict with US ediscovery requirements; the second part looked at practical ways to deal with the issues which arise. More than 140 people came to one or both sessions.

The panelists were chosen to give a rounded view of the legal and the practical problems from both sides of the Atlantic. Craig Cannon from Bank of America and Carter White of Lummus Technology Inc. represented the ones with the nightmares, the sleepless representatives of major US corporations whose business inevitably takes them into areas – and not just Europe – where US eDiscovery requirements conflict with more restrictive ideas about the use of documents and data. Amor Esteban of Hardy Shook & Bacon and Browning Marean of DLA Piper US offered the view from the US lawyers based in the US, whilst Farrah Pepper, recently moved from Gibson, Dunn & Crutcher to a role as in-house discovery counsel at GE had both viewpoints to offer. Natascha Gerlach is an attorney at Clearly Gottlieb in Brussels and she and Vince Neicho of Allen & Overy in London had the hands-on view from the European end. US Magistrate Judge Frank Maas of SDNY and Senior Master Steven Whitaker from the High Court in London gave the viewpoint of judges who deal with either end of the relevant requests. My role was to talk on the theme “How others see us” and to cover information governance. Nigel Murray was his usual urbane self, the conductor of an international choir whose singers were not guaranteed to sing to any pre-conceived score (there wasn’t one), but whose contributions covered every aspect of the problem.

With 300 words down just to say who was there, it would be foolish of me to try and summarise what each panelist said. Quite apart from anything else, whilst we had each chosen or been given our defined topics, there was no published running order. This allowed Nigel to follow themes as they developed, but since none of us knew who was going to be called next, this scribe had no realistic chance of capturing the contributions as they emerged – try doing this when you are on a panel, and you end up missing your own cue, conscious, perhaps, that you have just been asked a question in front of 140 people but with no idea what it was. Continue reading

Posted in Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Huron Legal, LegalTech | Leave a comment

Innovation and informed risk-taking are an eDiscovery duty

A speaker at a Nuix dinner prompts the thought that eDiscovery innovation lies in simply doing what the rules and codes of professional conduct require anyway. By chance, Ralph Losey has written on that subject this week. Risk is a challenge not a bar, and the lawyers’ duty to clients and the court lies in a cool and informed assessment of risk by people who know what they are doing and are prepared to stand by their judgements. Much the same applies to clients embarking on defensible deletion.

One of the few things which stuck in my head when I was an articled clerk (trainee solicitor as they are now more prosaically called) was a stern injunction from a senior solicitor to the effect that  “there are no marks for originality in the law”. It was probably wise advice in a profession which had changed little since my father was an articled clerk and which, in many ways, has changed little since. I cannot recall what I had suggested to deserve this reproof – outsourcing document production to teams of monks recently made redundant by the dissolution of the monasteries perhaps –  but it was easy then, as it is now, for a young incomer to mock the time-honoured ways of doing things.  They soon kicked it out of us.

It is worth repeating a paragraph from my first report on LegalTech 2012, because much of what was in it derives from the two events which are the subject of this post –  a dinner organised by Nuix and a panel which I moderated for them at the conference. The paragraph read:

Other subjects came my way: risk, and the sense that some lawyers, judges and companies are beginning to re-evaluate defensible deletion, their fear of sanctions, and the benefits of new technology, as the expense (the other half of the risk-benefit equation) continues to mount; innovation (in the true sense, not the lazy label “innovative” used as  a grand way of saying “new”);  consolidation amongst providers (though no one guessed how soon we would see the next acquisition); the marginalisation of law firms who ignore the way the wind is blowing; recruitment and training both of the young and of senior people transferring from other industries.

Frank MossThe guest speaker at the Nuix insight dinner was Frank Moss, former director of the MIT Media Lab, “a fantastic hotbed of no-holds-barred creativity, where scientists and students invent and experiment without any fear of failure”. Frank Moss disclaimed any deep knowledge of information governance or electronic discovery, but it quickly became clear that his ideas had application to any business – or, indeed, to any activity where received ideas edge out new ones. The well-known law firm principle “this is how we have always done things here” has no place at MIT Media Lab. Continue reading

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Hobs Legal Docs has an office in Manchester and a presence on Twitter

In my post Information Governance, UK eDisclosure and International eDiscovery in three days, I reported on a seminar which Terry Harrison of Hobs Legal Docs organised at HSBC’s Northern regional office in Manchester and which I spoke at. What I did not know when I wrote my account of the evening was that the post-seminar party continued until well after midnight whilst I was sleeping the sleep of the just at an airport hotel.

Hobs Legal Docs had just opened a new office in Manchester when we gave that seminar, and I now have the address details. It is at 4 Whitworth Street West, Manchester M3 5WY. The telephone number is 0161 832 6680.

I have the sense, and not just from Hobs, that solicitors (and, judging from our Manchester audience, some barristers as well) in some of the major commercial centres outside London are beginning to appreciate the opportunities opening for firms who can genuinely say that they can manage eDisclosure efficiently. Now that it no longer needs large teams, eDisclosure does not limit document-heavy litigation to big firms – armed with competent lawyers, outsourced technology and, perhaps, managed document review, smaller firms can take on large litigation and can meet much bigger firms on equal terms. Continue reading

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Taking stock of the eDiscovery world

This is a good moment to pause a little and look around the eDiscovery / eDisclosure world.  The wide range of topics which make this such an interesting field are all getting an airing at once. The stream of useful and relevant tweets is such that I had to turn it off to get anything done. If it appears to have a largely US flavour, much of it also has relevance in the UK and elsewhere.

I do not feel under any particular pressure to capture it all as it happens, and there are back-room things – the agendas for three forthcoming UK conferences and a White Paper, for example – which have some priority in terms of time allocation than the news stream which, if its elements are of importance at all, will still be so in a week’s time.  My web site also needs some attention to logos and indexes. It is helpful, nevertheless, to list some of the pending stories, if only to head off polite suggestions that I may have missed them. Since the point here is speed, I will ignore my usual rule about hyperlinking to everything referred to.

My involvement in or attendance at some recent events will be covered shortly. Monique Altheim has released videos of the eDiscovery sessions we did at CPDP in Brussels.  Nuix hosted a thought-provoking dinner at LegalTech which stimulated thought about the real meaning of “innovation” in eDiscovery.  It has been said of the cross-border panels hosted at LegalTech by Huron Legal and led by Nigel Murray that “the substantive information conveyed was top shelf” and there is talk of a re-run. Data protection and privacy move back up the agenda anyway thanks to the draft EU data protection regulation. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Guidance Software, Huron Legal, LegalTech, Nuix, Predictive Coding, Singapore, Technology Assisted Review | Leave a comment

Integration the target as Guidance Software buys CaseCentral

It was Twitter, of course, which first brought the news that Guidance Software had agreed to acquire CaseCentral.  The first tweet came so early that the Guidance web page announcing the deal was a blank placeholder; its page title confirmed that the story was true, but there was as yet no content. The tweets multiplied and the official Guidance Software announcement appeared shortly afterwards.

That announcement is here. The CaseCentral equivalent is here.

Gartner’s Magic Quadrant for eDiscovery Software, published in May 2011, opened with two “Strategic Planning Assumptions”:

By 2014, consolidation will have eliminated one in every four enterprise e-discovery vendors.
By 2013, software as a service (SaaS) and business process utilities will account for 75% of the revenue derived from processing, review, analysis and production of electronically stored information (ESI).

Although the report was, as its name suggests, concerned with eDiscovery software vendors, the consolidation prediction was made in respect of the wider eDiscovery vendor market, implying, correctly as it has turned out so far, that we would see aggregation of the various components of the externally-provided eDiscovery process.

The Magic Quadrant itself appeared opposite the Strategic Planning Assumptions, showing Guidance Software as a Leader and CaseCentral amongst the Visionaries. Of those whose names appeared there,  Autonomy had already acquired the digital assets of Iron Mountain by the time the Magic Quadrant appeared, and has itself since been acquired by HP (who was not itself qualified to appear in the Quadrant). Symantec has bought Clearwell. Epiq Systems had just increased its size and its range by the acquisition of Encore eDiscovery Solutions, extending both its software and its services portfolio, and has since added De Novo Legal which combines processing, hosting and review services. Continue reading

Posted in Clearwell, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Epiq Systems, FTI Technology, Guidance Software, Symantec | Leave a comment

Setting the scene after LegalTech 2012

Well, who would have thought that the big topic of conversation at LegalTech would be the weather? Keen though I am to import British ideas into US eDiscovery, the near-obsessive British focus on temperature and precipitation can stay at home. The subject came up thanks to the contrast between the balminess of this New York January compared with last year, when we needed snowshoes and crampons to cross 6th Avenue. Getting back to the UK was a different matter weather-wise, but we will come back to that.

The other generic ice-breaker at LegalTech is “Have you seen anything new here?”. None of us can actually remember ever seeing anything truly “new” at LegalTech, at least by the standards of an industry which produces ever more interesting and sophisticated technology throughout each year. The bar is set very high, and the question is the industry equivalent of the conventional enquiry after one’s health.

The problem – my particular problem, anyway – is illustrated by the legal IT PR who wrote to me as the show closed to ensure that I had all the information I needed for the article I might write about her client. What do you suggest I do, lady? Write about everything? Type out a big list of all the companies and people I saw and call it an article? Pick out some and ignore others on some subjective or arbitrary basis? I did in fact write about some of the new developments before LegalTech, mainly on my Google Plus site, and will pick up some more in due course, mainly by pointers to good summaries by others. My main purpose in going to LegalTech, apart from participation in a couple of panels, is to meet people.

At a conference last year, I overheard one person asking another about the best way to meet people at conferences. The answer given was “Follow Chris Dale around”. That is more than a little exaggerated, but I pass it on because its implication broadly defines what I do in between the formal events – I meet up with people, largely by serendipity, and find out far more than I would in the (necessarily fewer) formal meetings which require fixed time slots. As I say, I will point you in due course to some of the more structured accounts of LegalTech 2012, but for now I merely invite you to “follow me around” on what is largely a personal account of the show, though by no means a comprehensive one. This article is general in nature; I will write separately about the panels and other structured elements of the show. Continue reading

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