New challenges – making informed decisions

The exponential growth in the sources and volumes of electronic information is causing far greater challenges for organisations and law firms alike. eDiscovery is increasingly becoming a more complex and complicated process for all involved. It is important to continuously keep up with the latest tools and practices to respond to eDiscovery obligations. These challenges are only going to escalate as the volumes and sources of information evolve even further.

At the same time we all face pressures to better utilise technology and practices to be able to manage this information proportionately, cost effectively and accurately. The utilisation of technology will ensure the cost of discovery is proportionate to the cost of the case.

In most matters it is not possible to make an informed assessment about proportionality, unless there is a greater understanding of electronic discovery issues.The importance of early planning to be more informed at an earlier stage is more critical than ever.

All of us involved in this ever evolving and important field have an obligation to continue to learn about the latest technology and practices available.

Impressive topics and speakers

Chilli IQ has set up a dedicated website for the event http://ediscoverysummit.com.au. The website provides all relevant about the event and will be updated further with confirmed speakers and further programme information.

Looking through the conference programme there are some excellent topics for a number of the sessions. Topics include Information Governance, Legal Process Outsourcing (LPOs), Predictive Coding and the Implications of Social Media.

It is a well-balanced list of speakers covering the judiciary, law firms (legal and technical) and service providers to the legal industry. 

Duke Alden of AON has been confirmed as the international keynote speaker. Duke Alden is the global lead of Information Governance Records Management, and eDiscovery for Aon. Duke will be presenting a couple of  sessions on Structuring an Information Governance practice and how to achieve some earlier wins while building influence in the organization and the connection conundrum: the information and eDiscovery risks of social media.

The summit once again has a judicial presence with Justice John Sackar of the Supreme Court of NSW. Justice Sackar will be discussing The use of technology by the judicial system.

Eddie Sheey of Nuix will be presenting a session on Apply your eDisovery skills to solve broader business problems.  Eddie and Nuix have been regular supporters of the Chilli IQ Information Governance and eDiscovery events for many years, as well as the many other global eDiscovery events that Nuix support.

Michael do Rozario of Corrs Chambers Westgarth will be presenting a session on Australian and International Developments in E-Discovery Law. Earlier this year Corrs were in the news for developing their own iPad App (Casefolio) for lawyers.

Scott Gillard of Minter Ellison (who has become somewhat of a Chilli IQ event stalwart), is back again to add his expert knowledge for a panel discussion. I will also be joining Scott on the panel.

In addition to these speakers, further confirmed speakers currently include –

• Cristina Libro, Legal Technology Solutions Manager – Henry Davis York
• Bronwyn Barker, Electronic Evidence Specialist Independent – Commission Against Corruption [ICAC]
• Chris McLean, General Manager – Technology, Knowledge & Legal – Energetics
• Matthew Westwood-Hill, Implementation Engineer – Nuix

A conference of this kind is not possible without the support of its sponsors. The summit is fortunate to have the involvement of market leaders like Nuix, eDiscovery Tools, Sententia Discovery and Law in Order. All of these firms are dominant players in the Australian and global eDiscovery scene.

Chilli IQ have been leading the way for a number of years developing a programme that is of considerable relevance to the Australasian market. It is an event that I have been fortunate to attend since my return from the UK (5 years ago now).

The event attracts delegates from all over Australia. Once again there will be a number of representatives from New Zealand heading across the Tasman to hear from industry experts.  I know from organising the inaugural New Zealand eDiscovery Conference earlier this year, there is much interest in this space. 

Those attending the event will once again benefit from continuing to learn about latest trends and practices from some of the industry leaders.

This was highlighted to me again recently when I was involved in a small matter where the parties used 9 and 10 characters respectively for their document numbering. To illustrate how superfluous this was, Party A had 388 documents and Party B only had 29 documents, but the numbering format was AAA.BBB.0001 and FFF.000001.

“…the only requirement is that there is a unique number to identify each document”.

In any discovery exercise, the only requirement is that there is a unique number to identify each document.

The new discovery rules in New Zealand expect parties to agree a suitable numbering format. In fact it is part of a number of the considerations that parties are expected to agree on when they discuss the practical discovery arrangements.

We are fortunate in New Zealand that the Listing and Exchange Protocol does not go to the lengths of the regimented numbering format that has been adopted in Australia. I know many of the software providers (apart from one software product), would agree with me on some of the difficulties in complying with the ‘default’ Australian numbering format.

But, we have always done it this way !

When I point out as to why these unnecessarily long numbering formats are being used, the response is usually along the lines of “we have always done it this way”.

Many of these numbering formats have derived from paper based origins. These days in a digital world this level of detail in a document numbering format is totally unnecessary.

Like most discovery situations these days there may be a large volume of information initially, but the final discovery set may only be a few hundred documents. It is not compulsory to keep the same number that you used at the outset for you final discovery set. Too often when parties are outsourcing this work, the providers practice may be to allocate numbering at the outset. When it is paper documents the numbering is often assigned on the face of the document – this makes it extremely difficult to change your numbering later in the process.

Document numbering in the courtroom

Those that have used technology in a courtroom have probably experienced first-hand the shortcomings of having long winded document numbering. We often see counsel having to take a breath as they read out the document reference – making sure it was five leading zeros and not six!

Recently I witnessed a Royal Commission of Inquiry in New Zealand where parties had positively adopted technology to present its evidence, which should be saving considerable time in the management of the Inquiry. Unfortunately the full benefits of the technology were somewhat diminished, largely due to the parties using document numbers that sometimes were at least 12 characters long.

These lengths of numbering should only be required if the total documents in evidence was one trillion documents. 10 seconds may not appear a lot, but when there is nothing happening whilst awaiting the document to appear on screen (as there would be with a paper based trial with the document being presented physically to the witness), it can appear like an eternity. 

Prior to undertaking your next discovery exercise, it will be beneficial to liaise with the other party(s) to decide upon an appropriate numbering format for the matter at hand.  

Last week, the NZ Lawyer magazine published an article of mine entitled The rise of Legal Process Outsourcing (A link to the article can be found here).  The article looks at the justification for law firms and organisations to look to outsource parts of the electronic discovery process.

Do what you do best, outsource the rest

One of the main themes of the article posed the question for law firms are these non-legal tasks are the best use of their legal expertise? Much of the e-discovery process is technical or process driven and does not need to be carried out by lawyers.

The key drivers to embrace an outsourcing model can be – 

• Growing pressures to reduce the cost of litigation
• The challenges created by the complexity of the technology and the volumes of data
  • Do you have the in-house technology and does your internal resource have the expertise?
  • Do you want the risk?
• Acquiring a competitive advantage over other firms

“managing e-discovery in-house is becoming too burdensome, complicated and costly”

These considerations are reinforced by some of the points I made at the conclusion of the article –

The adoption of more innovative technologies in conjunction with outsourcing parts of the e-discovery process can help provide cheaper and more efficient legal services.

Legal outsourcing will not be right for every organisation or every situation, however leveraging the expertise of specialists to conduct parts of the discovery process can deliver more efficient and cost effective services.

The important message is that outsourcing parts of the discovery process can also help law firms focus on what they do best – the practice of law.

NEW ZEALAND’S INAUGURAL eDiscovery Conference attracted over 100 participants from across New Zea­land’s legal fraternity, including senior lawyers, barristers, in-house legal counsel as well as electronic discovery service providers.

The event, held in Auckland on 13 February, was organised by Ernst & Young and E-Discovery Consulting.

The opening address by Judge David Harvey set the scene by providing a judicial viewpoint of the new rules, from both a legal and a technology perspec­tive. Judge Harvey left delegates in little doubt about the importance of electronic information. He reinforced that lawyers need to be aware of the technologies and the technological processes that are required to manage this information.

Leading eDiscovery experts and prac­titioners from across New Zealand and Australia provided valuable insights with practical experiences of the tips and pitfalls of conducting electronic discovery.

The key themes of the conference included:

Need to learn more

The eDiscovery process is now an unavoidable part of any litigation or investigation. To successfully conduct electronic discovery under the new discovery rules it is essential to have a comprehensive understanding of the entire process.

Proportionality is a major considera­tion with the new discovery rules, but to be able to accurately assess proportion­ality it is important to know more about the eDiscovery process. This includes being more informed about the specific costs involved with each stage.

Early planning

It is essential to thoroughly plan the eDiscovery exercise, and to do so at an early stage. Spending time at the outset can lead to considerable cost savings later in the process.

Assessing what information you have and where it is, is now more complex due to the escalating volumes of electronic information organisations have. Even on the smallest of matters, doing this work at the outset can have significant advantages later.

If you do not have the internal expertise to help prepare for eDiscov­ery, ensure you have access to someone with the required expertise.

Embrace the technology

It is important for legal professionals to embrace technology to assist in man­aging their eDiscovery requirements.

Many law firms still have a tendency to “hit print” with electronic information. This practice is adding unnecessary burden and cost to the eDiscovery process.

The perception that eDiscovery is expensive was dispelled. If eDiscovery is managed correctly (which means embracing the right technology and best methods for the matter), there will be a considerable cost saving compared to more traditional discovery methods.

The conference illustrated how there are tools that can assist in culling and filtering information, enabling informa­tion to be reviewed as efficiently and cost effectively as possible. There are many tools and practices available that can considerably simplify this exercise. Tech­nology is becoming cheaper all the time, with some eDiscovery products starting from just a few dollars per month.

The conference was an overwhelming success and plans are already under way for another event in 2014.

Many are still carrying out discovery in the same way as previously in a paper based world.

I have found that some lawyers are just producing the discovery list as they have done previously (usually involving the dreaded dictation), and then just scanning the documents that form part of the list. The only change is that electronic copies are provided, instead of photocopies. If this is the process adopted, then this will add even more cost and burden than the process previously adopted. 

Providing documents as PDFs is effectively just providing a photograph of the actual document. This may prevent the receiving party receiving document as held by the producing party. 

E-Discovery is not just scanning paper documents

Managing electronic documents in the same way as paper documents will only lead to greater inefficiencies and increased costs. For some, all they are doing is listing documents as they always have and then just scanning documents. This is missing the true effectiveness of the process. 

Collecting information in its original native application (e.g. word, excel, outlook), can save considerable cost and complication. Turning documents that already exist in their native electronic application is adding unnecessary steps to the process. The documents could be provided in its native application together with its metadata.

The metadata (data about the information held within electronic files), can then be used to populate the list of documents. This will save the expensive and time consuming exercise of scanning and listing documents. If you have to manually list documents (either from electronic or paper), there are many cheaper options where you can outsource this work (both locally and overseas).

The final discovery is often only 100-200 documents, but to get to these documents can be complicated and costly. It is important to learn how to filter and cull information so documents can be reviewed and produced as efficiently and cost effectively as possible. There are many tools and techniques available to drill down and limit the volume of information.

When you have fewer than 100 documents, you may be able to get away with this approach, but as the document volumes increase that is when the technology used early in the process will be a considerable advantage.

Cooperation and proportionality

The success of the new discovery rules will be down to how parties cooperate over what is proportionate and devising a method to target the important information that is at issue. The rules are designed to establish a framework to assist parties reach agreement on discovery issues in a proportionate and cost effective manner.

It is important to deal with all documents electronically if it is possible. Not only will this save considerable time and money, it is also a more accurate method of finding exactly what you need to fulfil your discovery obligations.

All of these points are without even mentioning the importance of collecting the information in their native electronic applications (which is another post in itself). The benefit of the technology and more modernised practices is how they can be used to help to drill down to the relevant material, and then how beneficial it can also be post the discovery part of the litigation.

Not reviewing electronically

Traditionally lawyers reviewed paper documents and would put flags and notes on documents. This process can be simlified by allowing for the same process on screen. In addition you can also remove all duplicated material and filter irrelevant information from the review.

There is nothing to stop paper based practices, although it is important to appreciate there are more efficient practices, especially with reviewing the information.

Most experts estimate that the document review equates to about 70% of the cost of electronic discovery. One of the problems is that lawyers are ‘reading’ too many documents. With the technology available you no longer have to read every document. The technology needs to be used to allow lawyers to focus on the important documents. Tools like email threading, near duplicates and even predictive coding help the lawyers’ group similar documents together to accelerate the document review exercise. All of these features are not possible with a paper based approach.

Discovery can be challenging, especially due to the increasing volumes of information and new court requirements. The more you can manage information electronically the more efficient the e-discovery process will be.

Deciding upon the right ediscovery software can be a challenge for law firms, as it can be a complicated and burdensome process. There are many e-discovery software options available – it is just a matter of finding the right software to suit your individual requirements.

Selecting the right software will give firms a considerable advantage in tackling litigation. E-Discovery software can significantly ‘level the playing field’ for smaller firms in managing litigation as they look to compete with larger firms that may have more resources.

Get advice before you buy

There is no one right approach, but it is important to get independent advice to help you make an informed decision on the right software for you.

Get the advice first about the right solution for you and then make the purchase – unfortunately many make the purchase and then get the advice afterwards.

When things go wrong, it is usually the same story from the law firm – the person selling me the software, didn’t tell me that, or they didn’t tell me it couldn’t do that. It is important to realise that these people are selling the product and (understandably) they will have a vested interest that you purchase their product over other options.

It may not be that you were misled, or it may be that the full picture was not totally explained to you. Implementation and maintenance issues are areas that are frequently glossed over. Some e-discovery products require dedicated resource, even litigation support departments to run effectively – something that is not always made clear at the outset.

This is where it is essential to get an independent assessment on both the benefits and limitations of a product, to enable you to make an informed decision. You can get an unbiased appraisal of the strengths and weaknesses of a product – a lot more informative than what you would receive than from someone directly selling a product. All of this can be assessed and explained in plain english !

Does the product actually work?

Many firms have been exposed by their choice of e-discovery software. Usually this is down to the firm not fully understanding their own requirements, coupled with appreciating the options that are available.

Over the years many products have not been invested in, whilst other products have emerged, or advanced. Something that is not always explained to the ‘buyer’.

Some new products may have known issues (or ‘bugs’), which can present a significant disruption to your organisation. I have witnessed organisations (here in New Zealand) learn this the hard way and only find out about the issues after they have rolled the software out – essentially they are left with a product that doesn’t operate as it was supposed to.

One of my words of advice to anyone that is considering a new product or a ‘new version’ of a product, is do not be the first to ‘test drive’ it. It is important to wait until the product has been used elsewhere and any issues have been ironed out. 

It is important to find out about all of these considerations, prior to embarking on purchasing and rolling out your eDiscovery solution.

A shift to hosted solutions

I explained in an earlier post about the benefits and limitations of an in-house solution compared to a hosted option. One common trend that I am finding in New Zealand is that 2 years ago most organisations (about 80%) wanted to have the product in-house and have full control over it, but now that has totally changed as in excess of 80% of firms are looking to hosted options.

The main appeal of the hosted model is the straight disbursements, as well as not requiring internal expertise to maintain and operate the software. This frees up law firms to focus on legal work and not being burdened by document management and IT infrastructure issues.

It also allows the firm to the option of moving to another product that may more suit the current requirements.

Don’t be forced to shape your practice around your software?

Find a product that suits your requirements, instead of changing your requirements to what a product is capable of.

I find many law firms look to change their processes to what their e-discovery software can do. This is instead of finding the most suitable software to suit their requirements and practices.

A product that may have been the right selection 10 years ago may no longer be the right solution.

Keep up with developments

Technology evolves, so it is important to keep abreast of these developments.

Even if you are not looking at changing products, it is important to regularly keep up with the options available. The e-discovery landscape is dramatically changing with many new products with new features emerging all of the time.

Firms will also find it beneficial to learn more about the software developments, even if it is to just know more about what their competitors may be using

If you are looking for an eDiscovery solution, you should consider seeking independent advice prior to doing so, at least to avoid the chance of a repeat of the Novopay situation.

The conference was a one day event specifically designed to look at the basics of electronic discovery, as well as providing a practical insight into what is required by the new High Court discovery rules, which commenced one year ago.

The event attracted over 100 participants from across New Zealand’s legal fraternity including senior lawyers, barristers, in-house legal counsel as well as computer forensic practitioners and electronic discovery service providers.  Many of the delegates came from far afield all over New Zealand and also Australia. It was pleasing to see most firms and organisations involved in litigation being represented in some capacity.

The event was proudly supported by major sponsors Nuix, Symantec, Merrill Corporation and eDiscovery Tools.  In addition to our sponsors we had a number of exhibitors and further contributors that played their part in making this a very successful event. There were also additional industry providers from New Zealand and Australia attending the conference to explore the opportunities in the New Zealand market.

New issues – new challenges

The electronic discovery process does present many new challenges for legal professionals. This is largely attributed to the new issues created by the growth in the volumes and sources of electronic information. These challenges are heighted by the lack of understanding of what is involved in the eDiscovery process itself.

Electronic discovery in New Zealand has grown significantly over the last year and the conference allowed New Zealand practitioners to develop their knowledge of this evolving area. This growth can be attributed to the new discovery requirements, but also a growing appreciation that discovery practices do need to change.

We provided a practical insight into the entire e-discovery process, taking attendees back to the basics including a step by step guide to each phase of the process. The sessions looked at each stage of the EDRM (Electronic Discovery Reference Model), together with how it fits with the new High Court requirements.

The speakers

The opening address was delivered by His Honour, Judge David Harvey, who set the scene by providing a judicial viewpoint of the new rules, from both his legal and technology perspective.

Judge Harvey left delegates in little doubt about the importance of electronic information. He impressed that lawyers need to be aware of the technologies and the technological processes that are required to manage this information. Electronic information, together with the technologies available simply cannot be ignored.

It is always refreshing to see these messages come from a member of the judiciary!

Following Judge Harvey, leading eDiscovery experts and practitioners from across New Zealand and Australia, provided valuable insight with expert practical experiences of the tips and pitfalls of conducting electronic discovery. They looked in detail at the stages of the EDRM process. The speakers included Paul Norrie from Pingar, Sarah Cordner and Warren Dunn of Ernst & Young, Lynn Holtz and Mikhaila Nola from Chapman Tripp, Guy Burgess from LawFlow and Kiri Harkess from McElroys.

The speaking sessions were complimented by a number of panel discussions featuring leading e-discovery experts. The panel discussions gave delegates the opportunity to explore issues that they currently faced, as well as finding out more about significant advancements in best practices. I was also on hand to add my input on most of the panel discussions.

The panel discussion that created the most interest was the Emerging Technologies session that featured Alan Watkins from Symantec, Sarah Cordner and myself. We discussed various technologies that were now available to assist legal teams carry out document review exercises, with a particular insight into predictive coding.

Warren Dunn of Ernst & Young chaired the event in a way that he is without pair and thoroughly contributed to the success and enjoyment of the day.

Key themes

There were a number of key themes to come out of the conference. Some of the most striking messages included –  

Need to learn more about the eDiscovery process

The eDiscovery process is now an unavoidable part of any litigation or investigation. To successfully conduct electronic discovery under the new discovery rules it is essential to have a comprehensive understanding of the entire electronic discovery process. The conference sought to equip legal professionals with the skills and the necessary grounding in electronic discovery.

Proportionality is a major consideration with the new discovery rules, but to be able to accurately assess proportionality, you need to know more about the eDiscovery process involved. This includes being more informed about the specific costs involved with each stage of the process.

There is not a ‘one size fits all approach’ approach when it comes to eDiscovery, so it is important to follow best practices, but importantly to come up with a method to identify, review and produce information that is specific to the individual matter.

We live in a fast changing world, with technology being at the forefront of this change. As was discussed in detail on the day, electronic discovery is an evolving process, and I am sure this time next year there will be many new developments and practices to discuss in further detail. It is important that those participating in eDiscovery keep up to speed with these developments.

I am sure all that attended the conference would have learnt considerably more at the end of the day from what they knew when they arrived.

Importance of early planning

With the challenges involved with eDiscovery and the management of information it is essential to thoroughly plan the eDiscovery process, and do so at an early stage.

Spending this time at the outset can have considerable cost savings later in the process, not to mention less headaches. Assessing what information you have and where it is are now more complex due to the escalating volumes of electronic information organisations have. Even on the smallest of matters, the work at the outset can have significant advantages later in the proceedings.

If you do not have the internal expertise to help with preparing you for eDiscovery, then ensure you have access to someone with the required expertise.

Embrace the technology

It is important for legal professions to embrace technology to assist in managing their eDiscovery requirements.

A common perception that eDiscovery is expensive was dispelled, by illustrating if eDiscovery is managed correctly (which means embracing the right technology and best methods for the matter), there will always be a considerable cost saving compared to more traditional discovery methods.

Speaking to delegates during the day, many are still having a tendency to ‘hit print’ with electronic information. This practice is adding unnecessary burden and cost to the eDiscovery process.   The conference provided the essential knowledge of how there are tools that can assist in culling and filtering the information, enabling information to be reviewed as efficiently and cost effectively as possible.

There are many tools and practices available that can considerably simplify this exercise. Technology is becoming cheaper all of the time, with some eDiscovery products can start from just a few dollars per month.

Going by all the positive feedback we received from delegates and sponsors on the day and post the event, then the inaugural NZ eDiscovery Conference was an overwhelming success.

I know for myself and Warren Dunn the first ever event of its kind in New Zealand took a considerable amount of time and effort to organise. However the positive feedback definitely made the event worthwhile as it is essential to look to raise the awareness of “Managing eDiscovery in New Zealand”.

I am already looking at dates for 2014, and how we can improve the conference even further.

Since LegalTech most of my time has been dedicated to making the final arrangements for the NZ eDiscovery Conference (which concluded yesterday). Luckily I have now found some time to share my observations from the latest version of the industry’s leading Legal Technology event.

What is LegalTech?

I explained in detail in my post last year of what LegalTech is. Nothing about the event has changed too much, so I refer any newcomer to read my post from last year.

This year’s event saw in excess of 10,000 over 3 floors attending in midtown New York. Yet again there were over 200 exhibition booths with providers showcasing their products and services.

Anyone that is anyone in the Legal Technology space will be at LegalTech in some capacity. I was told by a couple of people that if you are not at LegalTech the questions and speculation begins about your absence.

It is a long trek to LegalTech from New Zealand, but it is always one worthwhile for anyone that is serious about the legal technology industry. I count myself fortunate to have been the only representative from New Zealand, something that my experiences can provide a point of difference for my clients here in New Zealand.

LegalTech is a great opportunity to network with fellow industry professionals that face similar issues to what we commonly combat in New Zealand. It is vital to keep up to date with the latest practices and technology developments, as we all know technology is evolving at an alarming rate, so we all need to evolve with it.

LegalTech yet again saw a number of new products, practices and processes, but the 2013 edition also saw a consolidation of some of the themes from last year’s LegalTech.

Predictive Coding

It was not surprising to ‘predict‘ that the theme of LegalTech once again would be Predictive Coding.

Predictive Coding (or under whatever guise providers are packaging it), was everywhere as you walked the exhibition floors, or listened in to the conference sessions. Whatever the name, the technology basically does the same thing. Obviously some providers have more comprehensive and sophisticated features than others.

Attention around Predictive Coding has moved somewhat onto the transparency of the process. Many of the Predictive coding products now allow a full ability to audit the calls made.

For many there is still an apprehension about the technology, but it was often pointed out that this type of grouping/categorising information is not new. In my mind any tools that can be used to assist lawyers navigate large volumes of documents has to be a tool that must be considered.

Information Governance

Information Governance probably attracted more attention this year. One of the main focusses of Information Governance is being more proactive in the management of data and with it taking the tools that are used for eDiscovery to apply them to the rest of the business. Knowing where your data is and how to access it is vital for eDiscovery and investigations, but this ability also assists to enable organisations to make more informed business decisions.

The tools are available to assist with Information Governance programmes, but it is important to have clear and concise communication between all stakeholders to ensure you know what data you have, where it is and how to access it.

Proportionality

One refreshing aspect of LegalTech this year was the continued mention of proportionality – something that those of us outside of the US sometimes think wasn’t always on the US radar. Both proportionality and reasonableness was at the heart of many of the discussions about eDiscovery and managing information in today’s digital world.

It was great to see the number of judicial figures speaking at LegalTech and conveying how they were proactively assisting parties get to what’s at issue and to target the important information. The judicial representatives also identified the important role that technology can play in achieving a proportionate outcome to the issues in dispute.

LPO

Once again LPO (Legal Process Outsourcing) was a key theme from the event. Moving on from the logistical side of LPO, we are now seeing many more providers offering managed review services.

On the way to LegalTech, I met up with a number of London law firms that have been successfully providing their clients with LPO options. In Asia-Pacific this is definitely a space to watch, especially with the number of Australian firms going down this path. I know I have started offering a number of my New Zealand clients the option to outsource work overseas to provide them with considerable cost savings.

LPO and together with it comes the importance of project management, both from within the law firm and also from within the corporate organisation. Project management has become a new skill, especially for law firms as they look to manage the work of their service providers.

As well as the endless meetings, conference sessions and demos, LegalTech is an opportunity to catch up with old friends, some of which I only get to see once a year.

Needless to say I am already making sure my diary is clear to attend LegalTech again next year.

eDiscovery Tools offers its product eDT Toolbox, a next generation software suite designed to support litigation, dispute resolution and regulatory compliance. An integrated product suite delivering state of the art ingestion, analysis, review, production and presentation tools in an all-in-one eDiscovery package. To learn more, visit www.ediscoverytools.com 

The Managing eDiscovery in New Zealand Conference is presented by Ernst & Young and E-Discovery Consulting.

This conference is the first of its kind in New Zealand as it is specifically designed to look at the basics of electronic discovery, as well as providing a practical insight into what is required by the new discovery rules.

Currently there are over 100 attending the event.

Registration

Registration information and further details about the conference can be found on the dedicated conference page.

At last count we had over 90 attendees for the event. Firms attending include – Anderson Creagh Lai, Anderson Lloyd, Anthony Harper, Bell Gully, Cavell Leitch Law, Chapman Tripp, Commerce Commission, Cooney Lees Morgan, Corban Revell, Crown Law, Deloitte, Duncan Cotterill, Freightways, Fuji Xerox, GCA Lawyers, Glaister Ennor, Harmans, Holland Beckett, Inland Revenue, Jackson Russell, Jones Fee, Kensington Swan, KPMG, Law in Order, Lowdnes Associates, Markit Law, McCaw Lewis, McElroys, Meredith Connell, Mortlock McCormock Law, Norris Ward McKinnon, Online Security Services, Pingar, Price Baker Berridge, Russell McVeagh, Sharp Tudhope, Simpson Grierson, Turner Hopkins and Wayne W Peters & Associates.

It is pleasing to see that the majority of firms that are involved in litigation or investigations are going to be represented on Wednesday. It is also heartening to see the number of attendees from out of town, with a number of the government agencies from Wellington and leading firms from Christchurch sending representatives.

We also have a number of leading Australian providers attending the conference, either as sponsors/exhibitors or just sending along representatives to see the opportunities in the New Zealand market. The more options that those conducting e-discovery in New Zealand have the better !!

Just to recap, the conference is specifically designed to look at the basics of electronic discovery, as well as providing a practical insight into what is required by the new discovery rules.

Registration

It is not too late to register as we still have a few places available. For more registration information and further details about the conference can be found on the dedicated conference page.

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Founded in 2008 Vound software has out grown quickly to have several 1000 users and has representatives in countries, including the USA, Japan, Netherlands, Germany, UK, France and Australia, Singapore, China, Latin America and Hong Kong. To learn more, http://www.vound-software.com/

The Managing eDiscovery in New Zealand Conference is presented by Ernst & Young and E-Discovery Consulting.

This conference is the first of its kind in New Zealand as it is specifically designed to look at the basics of electronic discovery, as well as providing a practical insight into what is required by the new discovery rules.

Further sponsorship and exhibition opportunities are still available for the conference.

Registration

Registration information and further details about the conference can be found on the dedicated conference page.

The Managing eDiscovery in New Zealand Conference is presented by Ernst & Young and E-Discovery Consulting. The event is being held in Auckland at the Stamford Plaza on Wednesday the 13th of February. 

The conference is specifically designed to look at the basics of electronic discovery, as well as providing a practical insight into what is required by the new discovery rules. The event will look to equip legal professionals with the further skills and the necessary grounding in electronic discovery.

I have just returned from LegalTech in New York, where I was able to witness latest developments in technology and eDiscovery practice. The NZ eDiscovery Conference will be an opportunity to raise the awareness of electronic discovery in the New Zealand market.

Currently there are over 70 delegates registered for the conference, with many more showing interest.

Registered attendees include lawyers and legal support staff from large and small law firms, as well as government and corporate organisations. Without naming everyone attending, the following organisations are represented –  

• Bell Gully
• Chapman Tripp
• Commerce Commission
• Crown Law
• DAC Beachcroft
• Deloitte
• Duncan Cotterill
• Fuji Xerox
• Inland Revenue
• Jackson Russell
• Jones Fee
• KPMG
• Law in Order
• Meredith Connell
• McElroys
• Pingar
• Price Baker Berridge
• Russell McVeagh
• Simpson Grierson

Speakers    

The conference features leading eDiscovery experts and practitioners from across New Zealand and Australia. His Honour Judge Harvey will lead the event with a judicial viewpoint of the New Discovery Rules, before other speakers will address the eDiscovery basics.

Confirmed speakers include -                                                                                                             

• His Honour Judge Harvey – District Court 
• Paul Norrie, Senior Product Manager – Pingar
• Kiri Harkess, Senior Associate – McElroys Lawyers
• Lynn Holtz, Project Services Supervisor – Chapman Tripp Lawyers
• Sarah Cordner, Senior Manager Fraud Investigations & Dispute Services – Ernst & Young
• Guy Burgess, CEO – LawFlow
• Warren Dunn, Head of Forensic Technology & Discovery Services – Ernst & Young
• Andrew King, Legal Consultant – E-Discovery Consulting
• Alan Watkins, Senior Systems Engineering Specialist – Symantec
• Shane Jansz, Sales Manager, Asia Pacific – Nuix

Sponsors

We have been fortunate to attract a number of leading global e-discovery providers as well as local providers to the legal industry.

Major sponsors include –  

• Nuix
• Symantec
• Merrill Corporation

Exhibitors and Contributors include –   

• Intella (Vound)
• Next Page
• ScanTech
• Streamlined Litigation Support
• LawFlow
• cP DocRev
• Ernst & Young
• E-Discovery Consulting  
  

Registration

Spots are filling fast, but there are still tickets available to attend. Registration information and further details about the conference can be found on the dedicated conference page.

Symantec Enterprise Vault in conjunction with the Clearwell eDiscovery platform are the leading and most comprehensive archiving and eDiscovery solutions on the market today. In this age of the information explosion, digital evidence is crucial to be able to identify and collect for investigations, litigation or other regulatory matters. eDiscovery is becoming a global business process and it is important for this information to be collected in a sound and defensible way to then be able to analyse the information and make intelligent decisions. New Zealand‘s legal system is based on a common law system and there are also privacy and data protection concerns that interplay with the information management challenges we are faced with in today’s complex data environment.

The Managing eDiscovery in New Zealand Conference is presented by Ernst & Young and E-Discovery Consulting.

This conference is the first of its kind in New Zealand as it is specifically designed to look at the basics of electronic discovery, as well as providing a practical insight into what is required by the new discovery rules.

Further sponsorship and exhibition opportunities are still available for the conference.

Registration

Registration information and further details about the conference can be found on the dedicated conference page.

Ernst & Young and E-Discovery Consulting have joined forces to present the Managing eDiscovery in New Zealand Conference. The conference is taking place at the Stamford Plaza in Auckland on Wednesday the 13th of February 2013.

This conference is the first of its kind in New Zealand as it is specifically designed to look at the basics of electronic discovery, as well as providing a practical insight into what is required by the new discovery rules.

The new discovery rules establish a framework to assist parties reach agreement on discovery issues in a proportionate and cost effective manner. To successfully conduct e-discovery under the new discovery rules it is essential to have a comprehensive understanding of the entire electronic discovery process.

New challenges of electronic information

The E-Discovery process does present many with new challenges and requires new skills from what many have been accustomed to. Over recent years there has been an exponential growth in both the volume and sources of electronic information, where nearly all information now originates in electronic form.

“E-Discovery is not just scanning paper documents”

Managing electronic documents in the same way as paper documents will only lead to greater inefficiencies and increased costs.

The final discovery set may only be 100-200 documents, but to get to these documents can be a complicated and costly process. It is important to learn how to filter and cull information so documents can be reviewed and produced as efficiently and cost effectively as possible

For many they are not fully aware of the practical issues involved and solutions for them to manage electronic information. Unless legal professionals are more informed about the electronic discovery process, it can be very complicated, time consuming and costly process. This lack of awareness can add avoidable costs to the discovery process.

Back to basics

The Managing eDiscovery in New Zealand Conference has been specifically tailored to suit the New Zealand e-discovery landscape. The event will look to equip legal professionals with the further skills and the necessary grounding in electronic discovery.

Each stage of the EDRM (Electronic Discovery Reference Model) will be explained together with how it fits with the new High Court requirements.

Programme update

The conference will provide a practical insight into the entire e-discovery process, taking delegates back to the basics including a step by step guide to –

• each phase involved in the e-discovery process
• efficient practices for managing evidence in electronic form
• the tips and pitfalls when collecting, processing and presenting electronic evidence
• understanding and managing the of costs in e-discovery
• Insourcing v’s outsourcing options
• a look at regulatory investigations and the eDiscovery process

A number of Panel discussions are scheduled where delegates can hear from leaders in the industry that are faced with similar issues and to listen to how they have responded to these issues. Those attending will have ample opportunity to ask practical questions from the Panel and fellow speakers.

Speakers

The conference will feature leading eDiscovery experts and practitioners from across New Zealand and Australia.  The speakers provide valuable insight with expert practical experiences of the tips and pitfalls of conducting electronic discovery.

Judge David Harvey is confirmed as the Keynote speaker, where he will provide a judicial perspective about the new discovery rules. Judge Harvey’s technical background allows him to provide expert opinion of how technology can assist in achieving more accurate, efficient and cost effective discovery.

Confirmed speakers include -

• His Honour Judge Harvey –  District Court
• Kiri Harkess, Associate – McElroys
• Lynn Holtz, Project Services Supervisor – Chapman Tripp
• Sarah Cordner, Senior Manager Fraud Investigations & Dispute Services – Ernst & Young
• Guy Burgess, CEO – LawFlow
• Warren Dunn, Head of Forensic Technology & Discovery Services – Ernst & Young
• Andrew King, Legal Consultant – E Discovery Consulting
• Alan Watkins, Senior Systems Engineering Specialist – Symantec
• Shane Jansz, Sales Manager – Asia Pacific – Nuix 

Meet with technology and service providers

A designated exhibition area has been set aside to provide delegates with an opportunity to meet with leading technology and service providers. Currently there are a number of global e-discovery providers as well as local providers to the legal industry that will be attending the event.

Since the new discovery rules, there have been a number of providers that have expanded their services further into the New Zealand eDiscovery space. The conference will be the first opportunity for new players to showcase their products and services, which should be beneficial for those attending to explore further options.

Who should attend?

The Conference has been designed to provide important knowledge for anyone that is involved in litigation, or those that want to know more about methods to manage electronic information. Registered attendees currently include lawyers and legal support staff from large and small law firms, as well as government and corporate organisations.

With the same principles applying to electronic discovery whether they involve small or large scale matters, the conference will feature speakers and content to provide valuable information to prepare everyone to tackle their e-discovery obligations.

Those attending will obtain a greater awareness of the basics of the e-discovery process which will be a significant advantage in tackling their next e-discovery exercise.

Registration

Registration information and further details about the conference can be found on the dedicated conference page.

Nuix is a worldwide provider of information management technologies, including eDiscovery, electronic investigation and information governance software. Nuix solutions scale to meet the needs of the smallest or largest organizations, making it faster and easier to undertake investigations and data management activities, no matter the size or complexity of the data sets. Nuix customers include the world’s leading advisory firms, litigation support providers, enterprises, government departments, law enforcement agencies, and all of the world’s major corporate regulatory bodies. To learn more, visit www.nuix.com.

The Managing eDiscovery in New Zealand Conference is presented by Ernst & Young and E-Discovery Consulting.

This conference is the first of its kind in New Zealand as it is specifically designed to look at the basics of electronic discovery, as well as providing a practical insight into what is required by the new discovery rules.

Further sponsorship and exhibition opportunities are still available for the conference.

Registration

Registration information and further details about the conference can be found on the dedicated conference page.

Merrill Corporation is a global provider of transcription, court reporting, e-discovery, captioning and digital audio transcription services to government bodies, legal and corporate sectors around the globe.  Merrill Corporation provide the world’s leading legal, financial and corporate professionals with a suite of advanced services as well as secure web-based tools to gather, organize and manage the confidential and time-sensitive information related to their matters or transactions.

Further sponsorship and exhibition opportunities are still available for the conference.

Registration

Registration information and further details about the conference can be found on the dedicated conference page.

With 4 weeks to the conference there has been considerable initial interest. Registered attendees currently include lawyers and legal support staff from large and small law firms, as well as government and corporate organisations.

Currently there are global e-discovery providers as well as local providers to the legal industry that will be attending the event.

Registration

Updated registration information can be found here.

Further details about the conference can be found on the dedicated conference page.

The Conference is an ideal opportunity for service and software providers to the industry to join in the event and showcase their products and services. For a long time there has been a lack of options available in New Zealand, but with this new found enthusiasm for e-discovery since the new Court requirements, there is an increasing movement from lawyers and firms to want to know more about the services and software that is available.

The event is designed to provide a back to basics approach to legal professionals to understand the entire electronic discovery process. For many e-discovery is new to them and often challenging without the right guidance. As well as providing those attending with more knowledge about the process, delegates will also have exposure to leading providers in the e-discovery space, giving them the opportunity to assess what options are available.  

Considerable interest by service providers

So far we have already had a number of expressions of interest from potential sponsors that are looking to participate in the event. Most of the interested parties so far are some of the household e-discovery names, as well as some newer providers that are looking at the opportunity of moving further into the e-discovery space. Over the past few days I have fielded queries from providers had not previously had the New Zealand e-discovery market on their immediate radar, but see the Conference as an ideal opportunity to gain greater exposure.

We have also had considerable interest from off-shore providers. Some of these providers may not be able to attend the event in person, but are interested in contributing in a way to get their product and service exposure in the New Zealand market.

Many sponsorship options can be tailored to suit the requirements of the company. Sponsorship options include the standard various sponsorship levels to participating solely as an exhibitor. Options can be tailored further to include adverts, table drops and sponsorship of individual sessions.

The more providers that we can attract to the event the better as the event is an ideal opportunity for the e-discovery industry in New Zealand to develop further. The tools and services that many providers offer are essential for legal professionals that are looking at efficient and cost effective solutions to their e-discovery requirements.

If anyone would like further details about sponsorship and exhibiting opportunities then please contact me directly.

Understanding the practical impact of the High Court Discovery Rules 12 months on

Electronic discovery in New Zealand has grown significantly over the last year and there is a clear need for an event which allows NZ legal professionals to develop their knowledge of this evolving area. To successfully conduct e-discovery under the new discovery rules it is essential to have a comprehensive understanding of the entire electronic discovery process.

In today’s digital world the increasing sources and volumes of electronic information is making the discovery process more challenging. If electronic documents are managed in the same way as we did paper documents then this will only lead to greater inefficiencies and increased costs.

The E-discovery process does present many with new challenges and requires new skills from what many have been accustomed to. Obtaining a greater awareness of the e-discovery process, will provide a significant advantage in tackling your next e-discovery exercise.

Back to basics

The Managing eDiscovery in New Zealand Conference has been specifically tailored to suit the New Zealand e-discovery landscape. The event will provide a practical insight into the entire e-discovery process, taking you back to the basics including a step by step guide to each phase of the process. The conference will look to equip legal professionals with the further skills and the necessary grounding in electronic discovery.

With the same principles applying to electronic discovery whether they involve small or large scale matters, the conference will feature speakers and content to provide valuable information to prepare everyone to tackle their e-discovery obligations.

Not only will the conference look at what the Court requires you to do, it will also provide valuable insight with expert practical experiences of the tips and pitfalls of conducting electronic discovery.

Registration

Further details about the event, including the registration details can be found here.

Sponsorship opportunities are also available for the event. Please contact us for more information.

Over the coming weeks leading up to the conference I will provide further details through my blog about the event and keep you updated as we finalise speakers and sponsors.

In today’s digital world the increasing sources and volumes of electronic information is making the discovery process more challenging. There is now a greater intersection between the law and technology with e-discovery now an important consideration for anyone involved in litigation.

E-Discovery is not just turning documents into an electronic format

As I have mentioned in previous posts, I continue to push the message that ‘’electronic discovery’’ is NOT solely turning documents into an electronic format. Managing electronic documents in the same way as we did paper documents will only lead to greater inefficiencies and increased costs.

Unless legal professionals are more informed about the electronic discovery process, it can be complicated, time consuming and costly. Technology is constantly evolving as are the tools and practices to carry out electronic discovery efficiently and cost effectively. It is important for those involved in litigation to have a greater understanding of the tools and practices that are available.

“It was a lot simpler in a paper based world”

Yes it was simpler, although the reality is that we no longer live in this world. All matters that go through the Courts or any regulatory investigation has increasing volumes of electronic information.

This means that all matters have e-discovery considerations, with some more complex than others. I rarely come across a matter with no electronic information and if I do it is usually because a party has decided to turn electronic information into a paper format. In doing so that party has lost any advantage they had by having all the information in an electronic format, not to mention the additional cost and burden they will face to comply with their legal obligations.

“Few solicitors know how to undertake e-discovery effectively“

Before discovery can be tackled proportionately and cost effectively it is important to have a handle on the evolving issues with electronic discovery. Many lawyers need to prepare and educate themselves more about how to manage electronic discovery effectively.

In a speech in the UK about Controlling the Cost of Disclosure, Lord Justice Jackson made the following observation about the problems with disclosure (discovery) –

Even in medium sized actions where all the documents are in paper form, disclosure can be a major exercise which generates disproportionate costs. It can also result in a formidable bundle, most of which is never looked at during the trial. In larger actions where the relevant documents are electronic, the problem is multiplied many times over. That problem is accentuated because relatively few solicitors and even fewer barristers really understand how to undertake e-disclosure in an effective way.

This problem is very evident in New Zealand, where many are new to the new challenging issues of e-discovery.

New Court expectations with new discovery rules

Since the new discovery rules were introduced in February 2012, the Court now requires that the cost of discovery be proportionate to what’s at issue. To be able to assess this new discovery rules expect parties to be better prepared and informed about the issues of the electronic discovery process.

The Court now expects the parties to know more about their information at an earlier stage to enable them to assess proportionality on all matters – this will involve making decisions that can be quite challenging due to the volumes and sources of electronic information, together with the complexities of this information. The problem with electronic information is the not knowing, as many parties do not know what information they have, or where it is (let alone how they with retrieve that information). It is not possible to make an informed assessment about proportionality, unless there is a greater understanding of electronic discovery issues.

The new discovery rules require parties to “ensure technology is used effectively and efficiently”. To achieve this it is important to know the benefits and risks of the technology. If those involved in discovery exercises do not have this knowledge then they should have access to someone with the expertise to equp them with this information and guidance.

These points may be going over old ground, but it is important to continue to reinforce these points.

E-discovery does present many with new challenges and requires new skills from what many have been accustomed to. Obtaining a greater understanding of the e-discovery process, will provide a significant advantage in tackling your next e-discovery exercise.

E-discovery software is becoming an essential part of any litigator’s toolkit. Deploying suitable software will be an advantage for anyone tackling discovery under the new court rules.

E-discovery software has matured from the days when it was primarily designed to handle scanned documents, but this brings many more factors to consider.

Options

A common misconception in the legal profession is that e-discovery software is always expensive and only suitable for large matters. This does not have to be the case, as there are many options available (some from as little as a few dollars a month). It is just a matter of finding the e-discovery software to suit your individual requirements.

Suitable software is available for those who predominantly deal with matters with small document volumes or have infrequent discovery. For many smaller firms that do not have the resources to throw at a problem, more effective use of technology can give them a significant competitive advantage in managing discovery exercises.

Independent advice to understand the specific requirements of a firm can be invaluable to assist in finding suitable e-discovery software.

Products can talk to each other

Gone are the days that firms had to deploy the same piece of software. Over the years a firm would purchase a product, solely because others had the product. This is no longer the case as there are many options available, with all products able to talk to each other and all should be able to facilitate a smooth transition of data.

The new discovery rules do not favour any product over another.

Find a product that suits your requirements, instead of changing your requirements to what a product is capable of.

Technology evolves, requirements of firms change, so the flexibility to be able to move to software that suits the requirements of a matter is essential. Some organisations learn this the hard way as they have invested in particular technology, which has been surpassed by other options. As the firm may have made a considerable investment in a particular product, they shape their practice around the technology as opposed to using the right product to suit their evolving practice requirements.

In-house v hosted

Historically law firms looked to deploy e-discovery software in-house, as they wanted to keep control of the entire discovery process.

This model is now changing, largely due to the greater options available and more competitive pricing to outsource this work. This frees up law firms to focus on legal work.

To effectively operate e-discovery software in-house it is important to invest in the right technology and have dedicated internal resources with the necessary expertise to run the software.  

Benefits of an in-house model include: 

• more control over the process – the discovery process can be run without any reliance on a third party;
• price saving over time; and
• familiarisation with an existing product.

A hosted model is essentially an “On Demand” service where you only pay for what you need and when you need it. The impact of hosted products has introduced many more options for those conducting electronic discovery.

Hosted software is becoming an increasingly popular model for firms that may not have large matters, or the internal resources to support a product. Also when a larger matter arises, they have the option to shift to a product that is capable of handling the increased volumes.

Benefits of a hosted model include: 

• pay only for what you use;
• hosting costs can be passed onto the client as a straight disbursement;
• no internal IT infrastructure burdens;
• accessibility – all that is required is an internet connection and a web browser and it can be viewed from anywhere in the world;
• security – multiple levels of security to ensure the data can only be accessed by those who have the required authorisation; and
• flexibility to change products.

One common trend in the market is the shift away from firms investing in in-house software. Some e-discovery products require dedicated resource, even litigation support departments, to run effectively. If you do not have this capability, then these products will just add additional burden to your core business.

Requirements

It is important to understand your exact requirements. There is no “one size fits all” approach with e-discovery software, as some have different strengths (and weaknesses) from others.

Independent advice to assess your exact requirements, explaining the benefits and limitations of each product can be valuable to assist to find the right software.

It is important to acknowledge the advantages of more sophisticated technology and the benefits it can bring, but the sophisticated options will not be required on all matters. Part of the new discovery rules is to try and be more proportionate and come up with strategies to get to the important information.

The more powerful tools with advanced features will be able to trawl through large volumes of electronic information and cull irrelevant material more effectively than some of the basic tools. The basic rule of thumb is, as the document volumes increase then so will the need for more powerful e-discovery software.

Most smaller matters probably will not require the benefits of predictive coding, email threading or near duplicate analysis, but they will benefit from having a platform that can assist in managing documents efficiently and cost effectively.

“it is important to regularly keep up with the options available”

If you have an e-discovery product (in-house or hosted), it is important to regularly keep up with the options available. The e-discovery landscape (and technology generally), is dramatically changing with many new products with new features emerging all of the time.

At the conclusion of each matter it can be useful to evaluate “what worked well”, “what did not work so well” and also a “wish list of further functionality” that may be beneficial. This knowledge can assist to evaluate if alternative e-discovery software may be more suitable.

There is no one right approach, but it is important to get independent advice to help you make an informed decision on the right software for you. Regardless of whatever software you deploy, it is essential to devise a plan and strategy to effectively tackle your e-discovery obligations.

The document in question was a cabinet paper about Modernising Court Services. The paper contained sensitive material that was intended to be withheld. When you look deeper at the document, much of the text had not been removed as it was still sitting behind the face of the document. This could be easily be read by a simple ‘copy and paste’ to a new file to view all of the text that was meant to have been removed.

The evolution of redaction

For those not familiar with the meaning of redaction, or redacting documents it is essentially removing privileged or sensitive information from a document. Redacting documents is most common in the legal world during the discovery process.

In a paper based world, this use to involve the blacking/blanking out of selected text from a document. Many may still print electronic files and then physically redact and then rescan. Obviously this is a very burdensome and inefficient process in today’s digital world.

Today the redaction process is predominantly carried out electronically. The advancement in technology has reduced much of the costly and time consuming part of the redaction process, but it is essential to know exactly what you are doing and if the software you are using is doing what you expect of it.

Redaction errors are common – but they shouldn’t be

Solely focusing on the cabinet paper instance alone is unfair, as redaction issues frequently occur. I still come across many similar issues during discovery exercises where parties have not redacted documents properly. Unfortunately many do not find out until they have been provided the documents to the other side.

Lawyers often spend considerable time deciding upon what has to be redacted. It is a shame when after all this hard work they are let down either by the product or people incorrectly applying the redactions.

Redaction errors can cause more than just embarrassment for the law firm and their client. It goes without saying the importance of getting the redaction process right. No one wants to provide the other parties with access to privileged or sensitive information.

Eliminating the challenges

Redaction issues have long been identified by many others. From a New Zealand perspective, Guy Burgess of Clendons and LawFlow, touched on these issues in greater detail in a blog post -

Guy Burgess outlined 3 challenges often faced when redacting documents –

• Making it easy – ideally, the lawyer will be able to make their own redactions directly on each PDF while viewing it anywhere and any time, without the need to install separate standalone software and without any fuss. In particular, this avoids the inefficient and obsolete process of printing documents, manually redacting them, and then re-scanning them.
• Making the redactions permanent and secure – there are many real-world examples of unsafe, or non-permanent, redactions, where an apparently redacted document still allows the underlying text to be easily retrieved
• Handling duplicates – there is no point redacting one version of a document, only to have a duplicate produced in original form.

I would add to this the importance of ensuring the product that you are using to redact is capable of ensuring the redactions are both permanent and secure. This means removing the redacted text from view in the document, but also ensuring the redacted text is not visible in any underlying layer or from an associated text file.

Check what you have redacted

Like with any documents provided to other parties, it is important to know what is ‘going out the door’. This is more important if your exchange set contains redacted documents, which could contain privileged or sensitive material.

Even with reputable software and their providers, often these mistakes are down to operator error. Ensure you know how the software you are using handles redactions, and the person applying the redactions knows they are doing it correctly.

E-Discovery software will take the pain out of the redaction process, but it is not always simply a matter of pushing a ‘magical button’. Do not just assume your redactions will be applied. This can be where some ediscovery products and especially products that were not developed for e-discovery can be found wanting.

If you are unsure of the redaction process or the software you are using – get advice from an expert.

Last week, the NZ Lawyer magazine published an article of mine entitled Keyword searching – is there a better option? (A link to the article can be found here).

The article serves to raise awareness by highlighting potential issues with a keyword search approach, but also looks at how keywords can be run more effectively to ensure they achieve the desired result.

Don’t blindly rely on keywords

Part of the new discovery rules requires parties to ensure they use technology in a way that is both effective and efficient. This does not mean that parties should just agree to use a set of keyword search terms, without seeing if the terms are appropriate for the matter. Blindly relying on the keyword searches, will not deliver back all the important information. There needs to be enough thought go into the process, and the ability to work together with the other parties to ensure the keywords are producing what is sought. This includes exploring their effectiveness, and looking at all potential options to get to the most important documents.

The main themes of the article include – 

• Highlighting the potential problems with a keyword search approach
• Outlining how to run more effective keyword searches; and
• Looking at alternative options to keyword searching, including technologies like Predictive Coding

The article outlines the importance of understanding the potential limitations of any approach, but also coming up with the most effective approach to suit the requirements of the matter at hand.

These points are reinforced by some of the points I made in the conclusion of the article –

Keyword searches are just one of many options to identify relevant documents. It is important to be fully aware of the limitations of running keyword searches and spend enough time devising a search strategy to run more effective searches.

Largely due to the ineffectiveness of keyword searching, more sophisticated alternatives of grouping similar documents together are proving more effective in getting to the important information more quickly, cost effectively and accurately. 

If you are unsure of your search and review strategy then seek expert guidance to assist you with your discovery process.

The important message is that keywords are just one of many options available. If you are to use keywords then put enough thought into the approach and test and sample the results.

Small firms with small matters want to know what ediscovery software options are available for them. I touched on this in my last post summarising the ADLS E-Discovery Seminar, but I thought I would expand on this issue due to a number of queries I have come across. Queries of this ilk are not new to me as I do a large majority of my work with smaller and medium size firms with similar concerns. They often do not have the resources to throw at their discovery requirements, and engage someone like myself to help them with their e-discovery requirements.

More firms are becoming aware that there are options available. Often what they are seeking is independent advice to assist them find the right ediscovery software for their requirements and then to facilitate the implementation of the software. It is important to look at all the options to find the right tools to help make e-discovery less burdensome.

I have written in detail around these issues previously, including my posts on -

• Get advice before you buy
• Providing technology options for small matters
• Growing litigation support options in NZ

One common trend that I am seeing with firms I work with and in the market generally, is the shift away from firms investing in in-house software themselves. Some of the e-discovery products available require dedicated resource, even litigation support departments to run effectively. If you have this capability, then these products may be right for you, but as most do not then these products may just add additional burden to your legal team. 

“All products can talk to each other”

Firms no longer have to deploy the same piece of software. I have watched over many years in New Zealand and from working overseas where a firm would go and purchase a product, solely because others had the product. This is no longer the case as there are many options available, as all products can talk to each other and all should be able to transfer data easily between products. The accessibility of the various software options has levelled the playing field and removed any disadvantage that some firms may have previously experienced.  Greater awareness of the options available certainly helps provide lawyers with the tools to conduct electronic discovery more effectively.

Technology evolves, requirements of firms change, so it is important to have the flexibility to be able to move to software that suits the requirements of a matter. Too often, I see firms try to change their practices and requirements to suit the capabilities of their ediscovery software.

The growth of SaaS options

Many providers offer a SaaS (Software as a Service) and hosted model, essentially it is an ‘On Demand’ service where you only pay for what you need and when you need it. The impact of these SaaS/hosted products, has seen many more options for those conducting electronic discovery.

This is becoming an increasingly popular model for firms that may not have large matters, or the internal resources to support a product.  Also when a larger matter arises, they have the option to shift (if necessary) to a product that is capable of handling the increased volumes. 

Some of the most common reasons people prefer a SaaS/hosted model include - 

• Pay only for what you use
• Disbursements can be billed directly to clients
• No internal infrastructure burdens
• Accessible to anyone with an internet connection, but multiple levels of security
• The flexibility to move to a different product without having made a substantial investment

I am the first to acknowledge the benefits of the more sophisticated technology and the benefits they can bring, but the sophisticated options will not be required on all matters. Most smaller matters probably won’t require the benefits of predictive coding, email threading or near duplicate analysis, but they will benefit from having a platform that can assist them manage their documents efficiently and cost effectively. On the smaller matters, some of the basic features may be all that is required.

There is no one right approach, but it is important to get independent advice to help you make an informed decision on the right software for you.

The seminar was designed to look at the basics of E-Discovery, but also an opportunity for practitioners to raise any queries they have had with the E-Discovery since the new discovery rules commenced in February this year.

In addition to promoting the importance of proportionality and parties cooperating on all aspects of the discovery process, some further themes from the seminar were –

The importance of native file production – To achieve greater efficiencies with e-discovery, parties should look to exchange information in native electronic format whenever it is possible.

Move away from scanned paper – If firms are continuing to deal with paper, then requiring to scan and code documents then discovery will still be a costly and time consuming process.

Cooperation is an ongoing obligation – The obligation to cooperate does not end as soon as the discovery order has been agreed. Parties need to ensure they cooperate early enough in the proceeding and then continue to discuss the practical arrangements of the discovery exercise. 

No one size fits all approach – It is important to come up with a method to identify, review and produce information that is specific to the individual matter.

But I’m a small firm with small matters

Too often I hear that I am not a big firm, or we do not have large matters so what do we do ? The Court rules are the same whoever you are, regardless of how many employees you have. Do not think, just because you are a small firm, or only deal in small volume matters there is no option for you. Since the seminar I have fielded many queries along the lines of what ediscovery software is around that can assist firms that primarily deal with small volumes of documents.

There are many e-discovery software options available – it is just a matter of finding the right software to suit your individual requirements.  Gone are the days that firms had to make an expensive capital investment, as there are many options available that can start from as low as a few dollars per month. Software is available that can suit all matters, obviously it depends on what you are looking to achieve. If you have to trawl and cull through large volumes of electronic information then some of the more sophisticated options will be more beneficial.

Deploying suitable technology can give smaller firms the ability to more effectively compete with larger firms that may have more resources at their disposal.

Obviously finding the right solution to suit firms requirements, does take a bit of thought to get the most suitable solution. As I have mentioned in earlier posts, it is important to find the best solution to suit your specific requirements. To effectively do this independent advice about the e-discovery options available can be invaluable.

The first articles to catch my eye were by Charles Holloway of Millnet. Charles has produced two articles recently on the Jackson reforms called A new order cometh and Big Bang: The new rules in April 2013 (CPR 31.5A). Both articles provide a detailed look at the new Jackson Reforms, specifically focussing on the new disclosure changes. The articles also provide a very good insight into how the new menu option works in with the new E-Disclosure Practice Direction 31B.

Another excellent commentary on UK developments is the post by Philip Favro of Symantec called How to Prepare for eDiscovery under New UK Civil Procedure Rule 31.5. Amongst a number of points the article highlights the importance of lawyers understanding ediscovery and the ability to make more effective use of technology to undertake discovery effectively.

Same proportionality principles as New Zealand

We have been fortunate in New Zealand as we have been able to watch the work from the Jackson Cost Review and also the new eDisclosure Practice Direction and Questionnaire.

The New Zealand discovery rules which commenced in February this year, largely reflects the menu option from the UK. Both jurisdictions follow similar objectives to ensure that the cost of discovery be proportionate to what’s at issue. The menu option then allows for parties to cooperate over an appropriate discovery order that can be tailored for each case. The New Zealand discovery rules provide for a range of options, including no discovery, standard discovery and tailored discovery.

I am sure as April 2013 draws nearer, there will be many more articles about the new Jackson reforms. In the meantime if anyone is interested in finding out more about what is happening with Disclosure in the UK they should look to Chris Dale’s blog the e-Disclosure Information Project.

E-Discovery requires new skills

For many in litigation, electronic discovery is very new to them. It requires new skills and a greater appreciation of the merits of technology than was previous required in a traditional discovery world dominated by paper. In today’s world the increasing sources and volumes of electronic information is making the discovery process more challenging. There is now a greater intersection between the law and technology with e-discovery now an important consideration for anyone involved in litigation.

“E-Discovery is not just turning documents into an electronic format”

As I have mentioned in previous posts, I still try to get the message across that ‘’electronic discovery’’ is NOT solely turning documents into an electronic format. If electronic documents are managed in the same way as we did paper documents then this will only lead to greater inefficiencies and increased costs.

Unless legal professionals are more informed about the electronic discovery process, it can be very complicated, time consuming and costly. As the technology is constantly evolving, so are the tools and practices to carry out electronic discovery efficiently and cost effectively. It is important for those involved in litigation to have a greater understanding of the tools and practices that are available.

Court expectations

Court rules now require that the cost of discovery be proportionate to what’s at issue. To be able to assess this the new discovery rules require parties to be better prepared and informed about the issues of the electronic discovery process.

The Court now expects the parties to know more about their information at an earlier stage to enable them to assess proportionality on all matters – this will involve making decisions that can be quite challenging due to the volumes and sources of electronic information. If parties do not have a greater understanding of electronic discovery issues, then it will not be possible to make an informed assessment about proportionality.

Responding to the lack of practical training

Many have never been provided with an opportunity to up skill with practical skills in dealing with issues that arise with electronic discovery. With the rapidly evolving electronic discovery landscape, it is clear that there is a need for further education about eDiscovery to create awareness of what can and should be done to manage electronic evidence proportionately.

For many involved in litigation this will require some up-skilling.

The CLE seminars look to provide practical skills to lawyers in addition to their legal qualifications. Hopefully these CLE seminars will equip legal professionals with the further skills and the necessary grounding in electronic discovery.

Consultants can still provide firms with the necessary expertise to help them navigate electronic discovery, but it is beneficial to also have a grounding with what is required in the e-discovery process. Consulting services will still be beneficial on individual matters as every matter has unique challenges.

CLE Seminars

The CLE seminars are designed with varying degrees of experience and knowledge in mind. The CLE seminars are an opportunity for all legal professionals (including legal support and IT staff) to develop a more in-depth understanding of electronic discovery.

Some of the seminars that we are providing include:

• The New Discovery Rules – a look through all the new court requirements
• E-Discovery 101 – an introductory seminar of the basics of electronic discovery
• E-Discovery for in-house counsel – a look at ediscovery considerations for in-house counsel
• E-Discovery for small matters – a look at how a firm with small matters can use practices and tools to efficiently deal with electronic discovery
• Search and Review Strategies – the importance of developing defensible and efficient search and review strategies

Further details of these seminars and many more are on my website. In addition we are able to tailor seminars to suit specific requirements, including delivering to a group or on a one on one basis.

These CLE seminars can be a valuable addition to a firm’s internal training programme. The seminars usually last for one hour, often carried out as a ‘lunch and learn’ of as a breakfast training session.

Hopefully the new CLE seminars should provide the opportunity for those involved in litigation to be better prepared and informed to tackle electronic discovery.

It is often thought that an in-depth forensic analysis with sophisticated tools is the only way to navigate through large volumes of electronic information. A forensic analysis does have its merits, especially when tackling complex electronic issues, but it does not have to be the only approach.

At the same time ediscovery is not the sole purpose for many when trawling through large data volumes. I primarily work with law firms and corporate organisations, but I am now coming across numerous regulators and auditors that want to quickly and easily look at large volumes of electronic information. For them simplicity is the key, combined with the knowledge that their approach will still be defensible.

Most organisations do not have the expertise or tools to conduct an in-depth forensic analysis, or in fact conduct an ediscovery exercise accurately, efficiently and cost effectively. I will talk in a later post about the importance of employing the right resources if work is going to be conducted in-house.

One of the main problems with some technology is that it is too complicated to use, when people do not have the time to spend hours training with the products. The end result is that firms often endeavour to tackle the issue themselves, without any appropriate software or expertise, which usually ends up being a complete nightmare. This is when an exercise becomes unnecessarily expensive as you have to spend considerable time in sorting the issues caused by this approach.

Removing all the irrelevant information is the main issue when navigating large volumes of electronic information. Tools that allow the ability to ‘slice and dice’ the information, essentially narrowing down to the important information is essential for any legal or regulatory exercise. If required, a specialist document review tool can then be used to review the important information for electronic discovery, or complex investigations.

Like any exercise it is worth putting in enough thought at the outset, to plan the best strategy and the appropriate tools that can assist this process. The time invested at the outset in planning the exercise will be realised in minimising the eventual costs in the long run.

No one right tool !

Like all technology in the ediscovery/forensic world, there is not one tool right for every situation, so it is always essential to get advice on the best technology to meet your requirements.

We are all under pressure to do our jobs quicker, cheaper and more efficiently. To achieve this it is essential to utilise technology and processes that makes the work of those using it more productive and efficient.  The key to all of these tools is simplicity and making their availability more mainstream, instead of only being able to be operated by a select few. Some of these forensic search tools may be able to assist this process.

Over recent years there has been an exponential growth in both the volume and sources of electronic information. Nearly all information now originates in electronic form. This has complicated the discovery process as it has created many new challenges for lawyers.

Managing electronic information in the same manner as paper documents can lead to substantially increased discovery costs. Paper documents have always been burdensome for lawyers, but you usually knew what you had and where it was. This is not always the case with electronic information. Most cases will still usually turn on only a handful of documents, but how to find those documents in an electronic world is crucial. It is essential to devise methods to identify key information without having to trawl through volumes of irrelevant information.

The new discovery rules establish a framework to assist parties to reach agreement on discovery issues in a proportionate and cost-effective manner. To be able to begin dialogue with the other party about proportionality, lawyers are now expected to be more informed about electronic discovery issues at an earlier stage.

Without the right expertise, electronic discovery can be a complicated process. Specialist expertise can assist lawyers navigate some of the evolving challenges of electronic discovery, reducing their client’s discovery costs and allowing lawyers freedom to focus on the legal aspects of the case.

A litigation support consultant or e-discovery expert may be able to assist in simplifying the discovery process.

What does a litigation support consultant do?

Many may wonder how a litigation support consultant could assist them as most have not needed one up to now. To help explain how a litigation support consultant could assist law firms and organisations, I thought I would give a summary of a busy day for me from last week.

The working day starts with a breakfast training session at a law firm about the new discovery rules. The session walks them through the key changes of the rules and identifies some practical methods that may assist them with their discovery exercises.

From the training session I am off to a firm that has a large volume of documents and wants to discuss methods of searching the documents. It is a complex case, so we discuss the limitations of keyword searching as well as the other options available to them, like cluster-based search strategies. Initially they provided me with a set of keywords they had intended to run. Evaluating the keywords, I am able to identify some of the terms may result in potentially over inclusive, or worse under inclusive results, missing important information.

Next up is a conference call with a US law firm looking for me to manage the document collection process from a New Zealand company involved in US litigation. I am often engaged on US-based litigation, or for US firms involved in New Zealand litigation as there is usually more importance placed upon how information is collected. It is critical that the integrity of the electronic information is maintained and no information is lost during the copying of this information from the client.

I receive a phone call late morning from a firm in Christchurch that has received some cost estimates for paper scanning and coding work that they want to outsource. They have engaged me to see if the cost estimates are accurate and if there is any advice that I can provide to help them understand their exact requirements, or if there are any alternative strategies.

While travelling to my next meeting I have a call with an IT person from a client. The law firm has asked me to determine from the IT staff what electronic information is available for 10 individuals from a two-year date period. I am then able to explain the technical issues in plain language to the lawyer about what information the client has and what is missing. There are two individuals that are no longer with the firm and their information isn’t readily available, so I explain the lengths and likely costs required to obtain the missing information.

Lunchtime involves visiting a large law firm to provide them with some education about electronic discovery issues. The focus of the session is about the advice they can provide to their clients about preserving documents as well as going through some methods to improve the efficiency of reviewing information. Essentially I am helping the firm understand the technology and the benefits it can bring to their job.

Immediately following the lunchtime training session I am off to a firm that has been sent an electronic exchange protocol. They have asked me to look at it and try and establish if there is anything contained within the protocol that they might struggle with, or may not be proportionate for them to do so. It is essential to sort these issues out at an early stage instead of a few days before the discovery deadline.

Late afternoon, I am off to a meeting with a firm that is about to start a discovery exercise. They have asked me to them help plan the exercise to ensure they conduct discovery both proportionately and cost effectively. At this early stage I am just providing initial advice on the most suitable approach for them. They are new to electronic discovery, so I explain what is required as far as preserving, collecting documents and the various search strategies. I am able to provide them with indicative pricing estimates of the stages of the discovery process, so they can evaluate a proportionate approach as well as outlining the likely discovery costs to their client.

Throughout the day I receive emails and calls from a firm that I am helping to manage their discovery logistics. This matter has been running for a number of months, so assistance is only required at stages that require a bit of guidance. The query today is how to search for a certain type of document within a specified date range, but to exclude documents from certain individuals.

One of the emails that I received during the day was from a firm that has a large volume of paper documents. Due to tight timeframes and to provide substantial cost savings we are looking to outsource this work to a local scanning firm, but getting the coding completed offshore. They have never done this before but do see the benefits of the substantial cost savings, so I reassure them as to how it will work in practice.

During a little spare time I keep track of the e-discovery space on social media and share anything that I think may be relevant. I also use the odd coffee break to conduct a final review of my latest blog post.

On the way to my last meeting I receive a call from an in-house counsel at a firm to discuss options for them to manage discovery. Like many businesses they are concerned about the costs of litigation. They want to look at alternative approaches that can help them reduce their spend on the discovery phase. I provide them with advice about efficient methods to provide documents to their law firm, as they have previously found this to be a burdensome process. They also want to discuss outsourcing work for scanning, coding and electronic processing, so the law firm is just required for the legal review of the documents. I have been receiving an increasing number of queries from organisations (whether it be their in-house counsel or IT), seeking advice on how they can manage their electronic information more effectively before the involvement of a law firm.

The working day concludes with an early evening training session with a group of local barristers to assist them with the new discovery rules. I also provide them with some demonstrations of a number of e-discovery products so they have more appreciation of what they all do. It is a productive session as they are able to see the various products for themselves and I am able to provide details of what each can and cannot do.

The main part of the week though was attending the Chilli IQ E-Discovery Summit.

Chilli IQ E-Discovery Summit

The E-Discovery Summit was another successful event, focussing on live issues in the E-Discovery landscape. I won’t give a full report of the Summit myself, but instead direct you toward the comprehensive overview by Jenny Katrivesis of Chilli IQ. Jenny’s overview is available here

For me the two key themes I took from the conference were:

• The move of Australian law firms along the LPO path; and
• From a global perspective looking at how tools like Predictive Coding are equipping legal teams with more options to review documents.

In addition to all the very informative sessions the conference was chaired superbly yet again by Warren Dunn of Ernst and Young.

I cannot finish without also mentioning the final session of the conference by Peter William’s from Deloitte’s Centre of the Edge. If anyone is looking for a speaker to deliver a ‘lively’ and informative session on the importance of what social media can do in your business then Peter is your man.

Thanks to Chilli IQ for putting on another successful event, together with the support of the many sponsors of the event.

I am sure Chilli IQ is already planning on how they can improve on the conference again for next year.