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ICYMI. A new regular column from industry veteran Jonathan Maas

Added on the 17th Oct 2018 at 11:18 am
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A digest of the more important eDisclosure / eDiscovery news from his BONG! email updates over the past month.

Plans to tackle UK’s “monster” disclosure levels approved by Civil Procedure Rule Committee https://maas-bong.io/2vtuVKM

The Law Society Gazette announces that “longawaited” reforms to the Civil Procedure Rules have been approved and the two-year pilot will start in the Business and Property Courts in the Rolls Building in London on 01 January 2019. The Disclosure Working Part (DWG) recommended the reforms included in the pilot in late 2017.

Interestingly, the DWG was set up in May 2016 in response to concerns expressed by the GC100 and other court users. They had observed, rather loudly and publicly, that, despite other recent reforms, the costs of disclosure were still increasing.

Linklaters LLP launches a new global eDiscovery service using software from Servient https://maasbong.io/2vtlLy4

Linklaters announced their new in-house eDiscovery service. Not particularly news-worthy in itself, but what made it stand-out was that they had bucked the trend of being yet another scalp for the clear industry leader, Relativity. Instead, they had selected a relativity unknown American company called Servient. Who?

I expect (and hope) to hear more about and from Servient over the coming months.

Out for public comment: Principles and Commentary on Defensible Disposition https:// maas-bong.io/2M3Ff7t

The Sedona Conference is a not-for-profit US research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation and intellectual property rights. They seek to “move the law forward in a reasoned and just way”.

Over the years they have produced a phenomenal amount of thought-leadership, protocols and best practice guides in the field of eDiscovery (and other legal disciplines). These emanate from a very active series of international Working Groups (12 at the last count).

In their words, “the leadership recognized that, with the staggering amount of data that is produced daily, there was a need for guidance for organizations and counsel on the adequate and proper disposition of information that is no longer subject to a legal hold and has exceeded the applicable legal, regulatory, and business retention requirements.”Essentially, how can organisations safely defensibly delete data without the courts and regulators coming after them at a later date?

Have anything to say about this? Consultation on this commentary closes on 24 October 2018.

Elusion Random Sample Test ordered under US Rule 26(g) in a keyword search-based discovery plan https://maas-bong.io/2MD3KZp

US litigator and international eDiscovery commentator, Ralph Losey, told us about an interesting discovery order handed down by a Chicago Magistrate Judge. The order is entitled “Order Establishing Production Protocol for Electronically Stored Information”. The order is particularly interesting because Judge Johnston explores what parties should do about Donald Rumsfeld’s “known knowns/known unknowns” that may or may not be found during a party’s statistical sampling of otherwise unreviewed tranches of documents.

Judge Johnston emphasises that new eDiscovery method of random sampling and statistical analysis can empower lawyers to know what they never did before. Lawyers, he says in his order, should embrace this sort of technology, not shy away from it.

The parties in this case had agreed on a great many of eDiscovery issues but had failed to agree on whether to include a document review assurance test in their protocol. The judge ordered that random Elusion sample be taken after the defendant had completed its production.

This is important because, as Ralph observes, it is the first (US) case to hold that a QC procedure should be used to meet the reasonable efforts certification requirements of FRCP Rule 26(g).

Allen & Overy invests further in advanced delivery offering with RelativityOne https://maasbong.io/2Ca3nkv

Unlike the Linklaters story above, this is interesting because not only have A&O gone with the de facto industry standard but because they have gone all in: they are the first “global elite” law firm to sign up to cloud-based RelativityOne.

A&O are one to watch in the eDiscovery space, having recently hired Scott Robson from EY as their new Head of eDiscovery. The firm’s Advanced Delivery Services now include: document and data review; hosting; advanced text and data analytics; trial presentation; and project management.

Whither their much-loved Ringtail?

Threat to Privacy Shield as the EU and US approach a critical European Parliament deadline to suspend data transfers from the EU to the US https:// maas-bong.io/2wrCGlF

A large part of an eDiscovery specialist’s work seems to revolve around dealing with the friction between the discovery demands of the US courts (who still seem to think they have jurisdiction over the rest of the world) and European data protection laws (now GDPR). Non-compliance or compliance with an order from either can carry a custodial sentence for the person stuck in the middle of the Atlantic Ocean, bobbing about between Scylla and Charybdis.

Obviously Safe Harbour is no longer safe (and, in my opinion, never really was). Ditto the Model Clauses. Now, as revealed in late August, even the skimpy Privacy Shield appears to have its back to the wall. America has failed to comply with an EU requirement to ensure that Privacy Shield is improved to enable it to provide the adequate level of protection required by data protection law and the EU Charter.

The law, the European Parliament has said, is clear and, as set out in the GDPR, if agreement is not adequate and if the US authorities fail to comply with its terms, then Privacy Shield must be suspended until they do. This ultimatum expired on 01 September and nothing has so far been done by the EU (or, I believe, the US). Transfer of data between the EU (and, soon, the UK) and the US remains in flux. Or, in other words, SNAFU!

Beyond eDiscovery: Relativity’s legal tech “app store’ strategy https://maas-bong.io/2LKjdBB

An interesting article appeared giving some insight into the dominant eDiscovery software’s growth strategy: “we just want to be a meaningful software company”. Read on.

eDiscovery market will reach $19.8 Billion by 2023; eDiscovery market opportunities and demand forecast to 2023 https://maas-bong.io/2NlHwe9

P&S Intelligence revealed the research that led them to make this prediction. The starting point was a value of around $8.3 Billion in 2016. The increasing prevalence of social media in eDiscovery and globalisation, they say, help to fuel this growth.

Nuix acquires Ringtail eDiscovery platform from FTI Consulting https://maas-bong.io/2CGiUsu

Well, knock me down with a feather! Who saw this coming? Announced a few weeks before the annual RelativityFest and a few days before the annual Nuix User Exchange (and release of software version 7.6). Interesting eDiscovery news, indeed. Good for FTI, who shed Ringtail to focus on RelativityOne; and good news for Nuix, who have long been looking for a sophisticated document review platform.

eDiscovery in South Africa – Significant development on Discovery Rules change https:// maas-bong.io/2xlPmuR

After a successful, and long, career in litigation support and as a discovery service provider in the UK, Terry moved to South Africa some four years ago. Since then he has been waging a single-handed battle to get the South African judiciary and lawyers to recognise the importance of ESI as evidence and to enshrine it in their Uniform Rules. Occasionally he reports, via his blog, of his snakes-and-ladders journey, like walking on scree (for you hill walkers). Whatever the situation, this evangelist remains indefatigably optimistic.

In the latest report he has found an ally. A senior, albeit retired, judge called Ismail Hussain. They are now collaborating on bringing awareness to the country’s Chief Justice, Mogoeng Mogoeng.

South Africa will be one of the last common law jurisdictions to begin developing legal procedure and jurisprudence in relation to eDiscovery. It has been a fascinating journey to follow and I look forward to seeing how South Africa decides to implement in into its Uniform Rules.

Legal services provider UnitedLex receives CVC investment https://maas-bong.io/2xuna9s

Perhaps on the back of the anticipated growth in the eDiscovery market I mention above, CVC Capital Partners is the latest to inject serious capital into a provider of services to the legal profession (from eDiscovery to cyber security). It is billed as “one of the largest transactions to date with any legal services provider”. CVC previously invested in AlixPartners (2012). This investment must be quite a tidy sum, given the other eDiscovery investments in 2018 alone:

– Everlaw ($25,000,000)

– Exterro ($100,000,000)

– CS Disco ($20,000,000)

– Logikcull ($25,000,000)

Not surprising, then, that so many US vendors are eyeing up UK offices, despite the uncertainty of the UK’s European status after 19 March 2019.

AI-driven discovery process produces millions of unresponsive documents https://maas-bong. io/2PZecYH

It was bound to happen sooner or later: someone cocked up their TAR exercise in the US. In public. To me it isn’t unusual for part of a large eDiscovery exercise to go wrong, but none of us wants it to surface post-production. I know we’d all crave for an extension of time to sort it out pre-production rather than for it to become an issue in court.

I don’t think the “black box” nature of such technology can be to blame. We all get to see the reports and test the data and findings. This was human error, plain and simple, not artificial intelligence (not that predictive coding is “AI”) gone rogue.

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