Predictive coding: a little less conversation, a little more action                 

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Predictive coding has been the hot topic of conversation for a while now. Both legal technology providers and industry thought leaders have waxed lyrical about its efficacy and this year marked the first time a UK court had approved the technology for use in a case. Yet despite this, one topic of conversation has remained untouched; how do you use the technology?

We decided to rectify this situation by hosting a unique seminar:-  Predictive Coding: Getting it Done. Held in the Museum of the Order of St John’s Chapter Hall, the seminar was led by Kroll Ontrack’s predictive coding experts Jim Sullivan and Leon Major. We were also delighted to welcome guest speakers Emily Maxwell of DLA Piper  and Ilaria de Lisa, Gleiss Lutz. As Kroll Ontrack clients, Emily and Ilaria were able to provide their unique insights into using predictive coding.

The seminar’s jam-packed agenda covered all the practical predictive coding basics including a breakdown of common terminology, an overview of the scenarios in which predictive coding can be used and, a step-by-step guide to using predictive coding using real life case studies as examples. Guests also had the opportunity to have their questions answered by our experts.

Following the presentation, guests gathered in the Museum’s medieval cloister gardens to enjoy a champagne reception and to make the most out of the unusually pleasant summer weather! Originally used by the Order of St John for growing medicinal herbs, the Cloister gardens is one of London’s hidden gems; a rose and lavender-scented oasis which proved to be the perfect location for relaxing after a very informative workshop.


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Brexit and data protection

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As the world contemplates the ramifications of the EU referendum, we’ve speculated as to how Brexit might change the way our clients handle data transfers in litigation and investigations.

What legislative regime would govern the UK?

The UK currently operates under the Data Protection Act 1998, which was enacted to bring British law in line with the EU Data Protection Directive (DPD). Since Britain has voted to leave the EU it is likely that the Data Protection Act 1998 will remain unchanged at least during the transition period.

For businesses operating solely within the UK, this means business as usual. However, things become complicated when a business needs to transfer data to or from another European country.

The EU is currently in the midst of replacing the General Data Protection Directive with the General Data Protection Regulation (GDPR) and had Britain voted to remain, British businesses would have had to comply with this new, tougher legislation which includes:

  • Increased fines, up to 4% of the annual global turnover
  • A “Privacy by design” provision requiring that data protection is designed into business services. Companies will need to ensure they are adopting measures to protect data right from the start of a client engagement.
  • Explicit consent being obtained for the collection and processing of data.
  • The appointment of an independent Data Protection Officer.
  • A “Right to be forgotten”. A client has the right to request the erasing of personal data. Companies will need to take steps to understand how they can comply with such a request.
  • A prohibition on data being transferred outside the EU without approval from the relevant supervisory body.

However, Brexit is not simply a case of “in” or “out” and much of the potential consequences of leaving depend on whether or not Britain becomes part of the European Economic Area (EEA) or completely severs ties.

If Britain becomes part of the EEA, this would afford Britain the same status as other European countries such as Norway and Iceland. This would mean it would be designated a ‘safe area’ under the GDPR.  In business terms, this would make data transfers somewhat easier, assuming the EU found the UK’s safeguards to be appropriate.  However, this would mean that the UK would still be subject to the DPD and from May 2018, the GDPR, when transferring data across borders to comply with legal obligations in other countries.

An EU-UK Privacy Shield?

If the UK does not become part of the EEA, the UK would probably have to negotiate an agreement similar to the EU-US Privacy Shield in order for UK companies to continue to transfer data between the UK and countries in the EU.

In this scenario it is likely the Article 29 Working Party would suggest similar terms to the US:

  • An ombudsman to handle complaints from EU citizens about the UK security services accessing their data.
  • UK Security services / the Home Office to provide written commitments that Europeans’ personal data will not be subject to mass surveillance.
  • An annual review or audit to check the new system is working properly.

The Upshot

Data protection legislation is changing regardless of the outcome of the referendum and British businesses need to be prepared for these changes. Until the UK finalises its data protection regime and comes to an agreement with the EU, companies need to think carefully about the risks of transferring data across European borders. However, business does not have to come to standstill; law firms and companies can rely on Kroll Ontrack’s mobile ediscovery solution and network of European offices and data centres to continue to process and transfer data in Europe in a compliant and cost-effective manner. We have always catered for the data protection needs of our clients as they take all laws and regulations into consideration.

Brexit: Our position

Although the results of the referendum are clear, the full impact of Brexit on data transfers in litigation and investigations is dependent on whether or not Britain becomes part of the European Economic Area (EEA) or the European Free Trade Association.

If the UK becomes part of the EEA and the EU finds the UK’s data protection safeguards to be appropriate this would make transferring data outside of the UK easier. However, it is likely that businesses will still have to comply with the new requirements to be implemented under the forthcoming General Data Protection Regulation, when transferring data across borders to comply with legal obligations in other countries.  Both legal mechanisms and technology solutions are relied upon in these situations to safeguard the personal data of European citizens.

If Britain does not become part of the EEA, the situation is more complicated and it is likely that an arrangement similar to the EU-US Privacy Shield would need to be agreed.  This will provide a safe passage for the transfer of data between the UK and other countries in Europe

Until the UK finalises its data protection regime and comes to an agreement with the EU companies need to think carefully about the risks of transferring data across European borders.  Business does not have to come to a standstill; law firms and companies can rely on Kroll Ontrack’s mobile ediscovery solution and network of European offices to continue processing and transferring data in Europe in a compliant and cost-effective manner.   We have always catered for the data protection needs of our clients as they take all laws and regulations into consideration.

 

Putting the crypt into encryption

Last week a group of intrepid lawyers joined us for a foray into the fascinating worlds of computer forensic investigations and fine wine.  Entitled the Gigabyte and the Grape, the event was designed to stimulate both the mind and the palate. However, the event proved to be so popular that we quickly outgrew the capacity of the original venue! We are always pleasantly surprised when our events exceed anticipated demand but given the growing importance of electronic evidence in legal proceedings, it is perhaps less surprising that brushing up on computer forensics knowledge is becoming a greater training priority for lawyers across practice areas.

Thankfully we were able to upgrade our venue to the historic St Andrew Holborn, dividing our time between the beautiful beamed Court House room for the presentation and the atmospheric crypts for the wine tasting segment of the evening.

The Gigabytes…

courthouseAfter a welcome drink, Lead Forensic Consultant  Tony Dearsley led our guests through our ‘Forensics for Lawyers’ presentation.

As the title might suggest, the purpose of the presentation is educating lawyers and although there is technical information and explanations, we focus on providing information that can be used in practice, covering key topics such as:

  • The types of data that can be extracted
  • The types of device which can contain evidence
  • Digital forensics methods
  • How digital forensic evidence can be used in cases

The Grapes…

cryptAfter the presentation, we entered the candle-lit crypts for the second part of this educational event; a wine tasting hosted by renowned sommelier Gilbert Winfield. Gilbert guided our guests through a flight of fine wines, starting with a Nicholas Feuillatte champagne and ending with a rare Madeira.

Accompanied by canapes specially-selected to match the wines on offer, it was a very convivial evening and one which we hope has given our guests useful insights on the power of computer forensics.

ProFile: Stephanie Painter (Associate Case Manager)

Stephanie Painter is one of our newest members of the Case Management team at Kroll Ontrack. Always popular with our clients and dedicated to her work (so much so that one of them accused her of being ‘too nice’ at our Christmas comedy evening! ), we decided to catch up with Stephanie to look back over her first year at Kroll Ontrack and find out a bit more about the woman behind the job. 

Ediscovery is still quite a specialist industry. What made you decide to pursue a career as a case manager?

I have always been interested in law, both in terms of legal practice and academically. I have an LLB  from Exeter University and went on to do an LLM in International Human Rights Law which was really fascinating and something I am still passionate about in my spare time (more on that later!-ed). After graduating I initially worked as a legal assistant in the residential conveyancing and litgation departments. It was here that I first became interested in and aware of ediscovery. Working in litigation gave me hands on experience of how technology can make or break a case and I found myself becoming more drawn to the ediscovery/investigative side of things. To cut a longer story short, I have now been at Kroll Ontrack for just over a year and I am fully immersed in the world of ediscovery!

Stephanie Painter. Kroll Ontrack. London.

Stephanie Painter. Kroll Ontrack. London

That sounds intense! How have you found it?

Although I had some relevant experience from my litigation days, it has been a steep learning curve!  I not only had to learn about ediscovery but also get up to speed with Computer Forensics  and Data Analytics, both of which were completely new areas for me.

Thankfully, Kroll Ontrack and the Case Management team have helped build my confidence. I started by learning on the job and assisting with smaller projects with just a few custodians and quickly progressed to working on a project with over 15 million documents!

What are you working on at the moment?

My current workload is a prime example of just how varied and busy the job can be. As I write this, I am managing a number of projects including a large multi-faceted project for a Silver Circle Law Firm, with Computer Forensics and Managed Review elements. This type of project presents unique challenges. I am not only responsible for educating our clients about the ediscovery process but also for overseeing the collection, processing and review of millions of documents which are spread across a number of data bases. A year later and I am building up my own contacts and taking on large, international projects independently.

What do you like best about being a case manager?

Ediscovery is very much a global industry and as someone interested in international law, I am really enjoying cases that have an international flavour. So far, I have been helping clients with cases spanning Europe, the US and Asia. Over the past year I have travelled to Barcelona, Amsterdam and Milan a number of times. Trips to Switzerland and Rome are also on the cards! I have always loved travelling, so it is great to now be able to do it as part of my role here at Kroll Ontrack. Being able to travel and meet clients at their own offices (in beautiful European cities!) has been a real highlight.

Well, that’s the work stuff out of the way! You’re obviously very busy but when you do have spare time how do you like to spend it?

Yes, I certainly do like to be busy, so I usually always have something planned for the weekend! I am a Qualified Mountain Leader and teach the Duke of Edinburgh award, so can often be found half way up a mountain teaching teenagers navigation. I also share a horse with my friend at home in the Cotswolds and like to ride as often as I can. I have volunteered with the Red Cross for the last 3 years and go across to the Refugee Destitution Centre in Hackney a few times a month at lunchtimes or in the evenings.  We have been delivering English writing classes that encourage creativity and the poems that the refugees have been writing are truly inspiring. I am a keen advocate of volunteering and like to encourage everyone to find some time in our busy lives to give something back to the community!

Our German Document Review Centre is now open

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Following the continued success of our London document review centre and unprecedented demand from European clients, we have now opened our purpose-built document review facility in Germany, located just outside of Stuttgart.

Stuttgart is a city renowned for being home to leading high-tech corporations, financial services providers and law firms, making it a natural location for our services. As Stuttgart boasts excellent transport links, clients from cities inside and outside of Germany are only a train ride away.

Key facts

German-qualified lawyers with a global outlook

Our pool of review lawyers are primarily from Germany and qualified at German law schools, meaning they are experts on German law and are often native German speakers. However, many of our review lawyers speak second or third languages and have extensive experience working at leading global firms.  At the moment, our document review centre is a little like a condensed version of Europe with current reviewers speaking and reviewing documents in  German, English, Spanish, French, Romanian and many other languages!

Designed with reviewers in mind

Our success in London has partly been down to the reviewer-focused way in which our facility is managed and designed and we have followed the same principles in Germany. Our document review centre provides lawyers with comfortable, ergonomic workstations as well as dedicated kitchens and break areas where it is possible to relax and make personal phone calls (mobile phones are not allowed in the review rooms).

As well as the facilities, our document reviewers receive a warm welcome and are invited to take part in socials and networking events alongside our permanent ediscovery team.

Details such as these have proven very popular with review lawyers and have enabled us to attract and retain the best review lawyers in the business, which in turn retains old clients and attracts new ones.

 

The ‘Go’-ahead for Artificial Intelligence

Go and artificial intelligence

In 1996 chess master Garry Kasparov was beaten by Deep Blue, a supercomputer developed by IBM. Before Kasparov was defeated, many commentators thought that it would be impossible for a computer to beat a human at the game. Chess is a sophisticated game, lauded for its complexity and often used as a measure of human intelligence and human success at the game depends on reading one’s opponent and planning. However, unlike a human, a chess computer is able to analyse all potential moves, a tactic that ultimately led DeepBlue to beat Kasparov.

Fast forward 20 years and there has been another surprise victory for artificial intelligence; this time with a Google-developed program called AlphaGo beating Lee Sedol, a 9thdan champion of the strategy game Go.

Go has long fascinated mathematicians and computer scientists. Back in 1965, the cryptologist I. J. Good described the difficulties involved in a computer beating a human Go player:

“Go on a computer? – In order to programme a computer to play a reasonable game of Go, rather than merely a legal game – it is necessary to formalise the principles of good strategy, or to design a learning programme. The principles are more qualitative and mysterious than in chess, and depend more on judgment. So I think it will be even more difficult to programme a computer to play a reasonable game of Go than of chess.”

Unlike chess, which is played on a board consisting of a twelve by twelve grid with only twenty-four pieces, Go is played on a 19×19 grid and uses counters known as stones. A standard Go set contains a whopping 181 black stones and 180 white stones. In order to win, a player must capture an opponent’s stones. Unlike chess, this is achieved by surrounding a stone with multiple stones which in turn makes mapping the number of potential moves much more difficult if not mathematically impossible. In other words Go is like chess on steroids.

Even as recently as 2015, the best Go programs only managed to reach amateur level and prompted prominent investors such as Elon Musk to comment that we were still 10 years away from a victory against a top ranking professional player.

So how did the computer finally beat a human?

Put simply, by being more human.  AlphaGo’s algorithm uses machine learning, neural networks and tree search techniques to make decisions. The program’s neural networks were initially trained to mimic expert human gameplay using data from historical games played by experts. This data consisted of around 30 million moves from around 160,000 games.  After this period of learning, the program was trained further by playing large numbers of games against other versions of itself. Once it had reached a certain degree of proficiency, it was trained further by being set to play large numbers of games against other instances of itself. Unlike chess programs, AlphaGo doesn’t use a ‘database’ of moves to play.

Because of this, the outcome of the game against Sedol was a complete surprise to AlphaGo’s creators. One of the developers commented:

“Although we have programmed this machine to play, we have no idea what moves it will come up with. Its moves are an emergent phenomenon from the training. We just create the data sets and the training algorithms. But the moves it then comes up with are out of our hands—and much better than we, as Go players, could come up with.”

Predictive coding: science fact not science fiction

The story of AlphaGo gives a fascinating insight how artificial intelligence is developing and  uses similar techniques to  our own predictive coding technology. In the same way AlphaGo uses machine learning to learn from past games, expert human reviewers train our platform to identify which documents are relevant and make legal document reviews more efficient.

For AlphaGo, this has resulted in a victory against one of the finest human players whereas predictive coding technology has received judicial approval stating that it is as efficient as traditional document review using keyword searches also uses machine learning techniques to mimic a human reviewer.

Many people still have doubts about using predictive coding technology but we hope intelligence victories such as AlphaGo’s will lead to greater public awareness about the capabilities of machine learning technology. After all, if a computer can beat a human in a game as complex as Go, suddenly believing in the capabilities predictive coding seems less of a leap of faith.

 

Kroll Ontrack’s Canine Forensics Team: Sniffing out the evidence and cutting costs

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Kroll Ontrack is pleased to announce our latest weapon against data theft; our Canine Data Defenders. This new service, believed to be the first of its kind in the UK, will enable clients to reduce initial data forensics costs and speed up computer forensics investigations.

How does it work?

A dog’s sense of smell is unbelievably powerful, between 10,000 and 100,000 times as acute as humans, depending on the breed. A useful way of imagining this is to think of the difference in terms of vision; if a human can see an object one third of a mile away, a dog can see the same object 3,000 miles away. It is because of this ability that the dog’s sense of smell has long been utilised in the medical, military and law enforcement fields to detect cancer cells, explosives and drugs.

What do Kroll Ontrack’s dogs look for?

cf dogThe human endocrine system is extremely complex and to a trained nose, compounds found in sweat can reveal much about the human in question’s behaviour and mental state. Someone using a device for illegal activity, for example, is likely to release a greater amount of stress hormone into their sweat which in turn is transferred onto the device via touch. Kroll Ontrack’s canine team has been trained to pick up on these scents and lead handlers to devices that have been used for nefarious purposes. The process is simple and a team of two dogs can check 100 devices within an hour, which is a marked improvement on a human team handling and scanning each device.

After a successful pilot study, the Canine Data Defenders will be available to clients from 31st June 2016.

Kroll Ontrack Head of Computer Forensics , John Perro, commented “This is not about substituting human knowledge but about saving our clients’ time and money. Our dogs can pinpoint a machine used for suspect activity within seconds, allowing our human team to get straight into a type 2 data analysis.  We can also see applications in internal compliance investigations.  A quick sweep of an office using our dogs will provide compliance officers with a quick and accurate spot check of the company’s activities.”

A second team of dogs is currently in the final stage of training to provide early-evidence services for our ediscovery team, further cementing the role of dogs at Kroll Ontrack.

How can banks reduce litigation and investigation-related legal costs?

How can banks reduce legal costs?

Last week over 50 corporate in-house counsel and lawyers working in the financial sector gathered in the rather glamorous surroundings of the Banking Hall to join Kroll Ontrack  for our breakfast seminar, ‘Banks or Law Firms: Who holds the purse strings’

After a delicious breakfast, our illustrious panel tackled the complex and often, controversial topic of managing legal costs for banking-related investigations and litigations. The key themes up for debate were:

  • How recent ‘big ticket’ regulatory investigations have affected the banking world
  • Using the latest predictive coding technology to reduce legal costs
  • Leveraging corporate buying power when using law firms and other professional service providers
  • Discussing alternative pricing structures
  • Examining the pros and cons of unbundling legal services

The debate was moderated by Ben Fielding of Kroll Ontrack and our speakers included Elizabeth Meekison a Senior Lawyer in Commercial Litigation atLloyds Banking Group,  Mark Humphries – Senior Partner at Humphries Kerstetter, Thomas Leyland, Partner at Dentons and,  Orion Wisness, Discovery Consultant at Kroll Ontrack. With representation from in-house counsel from banks, senior partners from top law firms and a technology provider, each brought their own experiences and opinions to what was an eloquent, wide-ranging, and informative discussion.

The key points that emerged were:

Priorities for banks:

  • Banks value accuracy, defensibility of process and not necessarily lower costs when it comes to ediscovery
  • Working collaboratively with law firms and technology providers and ensuring regular and effective communication

The benefits of proactivity:

  • The importance of involving an ediscovery provider from the beginning of the disclosure process or investigation.
  • How implementing information governance strategies and managing the quantity and location of your data can reduce costs.
  • How fixed fee modelling could be implemented (and why this might not be a possibility in certain cases.)

Legislative concerns:

  • Are the standard disclosure rules too broad?
  • In light of spiralling data volumes, should the disclosure rules be modified so they are closer to the arbitration model?

The importance of predictive coding technology

With the recent judgement (Pyrrho Investments v MWB Property [2016] EWHC 256 (Ch)) approving the use of predictive coding still hot news, much of the debate and audience’s questions were focused on:

  • How technology such as predictive coding can be used to reduce the burden of big data in litigation and investigations
  • The implications of the recent judgement approving use of predictive coding technology in the UK
  • The need for both corporations and law firms to fully understand exactly what predictive coding entails in terms of both its capabilities and its limitations

We would like to thank speakers for taking the time out of their busy schedules to take part in the debate and share their expertise. We’d also like to thank our guests for joining us and further enlivening the discussion with their considered questions.

 

UK High Court approves use of Predictive Coding in litigation

male hands working with laptop computer

Last week legal technology providers in the UK had a lot to celebrate as the English High Court approved the use of predictive coding for disclosure in litigation.

The judgement, handed down by Master Matthews, gave official judicial authorisation for the use of predictive coding in High Court proceedings. Summing up his decision, Master Matthews stated that predictive coding is just as accurate, if not more so than a manual review using keyword searches. He also estimated that predictive coding would offer significant cost savings in this particular case and that the possible disclosure of over 3 million documents done via traditional manual review would be disproportionate and ‘unreasonable’.

To read the judgement in full, please click here.

How does predictive coding work?

Predictive coding is an advanced machine-learning technology which allows computers to predict how documents should be coded (i.e., should a document be tagged ‘responsive’ or ‘privileged’) based on decisions made by human subject matter experts. Put simply, an experienced lawyer trains the computer by coding a sample set of documents, and the computer then learns what to look for based on this training. In the context of edisclosure and other investigative exercises involving electronic evidence, this technology can find key documents faster and with fewer human reviewers, thereby saving on cost and review time.

Who uses predictive coding?

Other jurisdictions, such as the USA and Ireland, have led the way in giving judicial approval to predictive coding, and the UK judgement references these cases in detail. Despite these cases as well as the ever-increasing sophistication of the technology itself, the UK law community has been somewhat reluctant to make use of the technology, as explored in this study by Kroll Ontrack Legal Consultant and former litigation lawyer, Hitesh Chowdhry.

In Chowdhry’s white paper, ‘Rage Against the Machine; Attitudes to Predictive Coding Amongst UK Lawyers’, he notes that his study revealed that the main barriers to adopting predictive coding technology were:

  • Risk aversion and mistrust of the technology’s accuracy
  • Belief that predictive coding would have a negative effect on revenue
  • Satisfaction with existing methods and a belief that existing practices offered more accuracy than studies have suggested
  • Insufficient understanding and knowledge of the complex predictive coding process
  • Diffusion amongst professionals

The UK judgement counters much of the fears uncovered in Chowdhry’s study by stating that the technology is accurate and offers cost savings.

Predictive coding and the Civil Procedure Rules

As data volumes continue to grow and traditional manual reviews using keyword searches become less feasible, predictive coding may be the best path toward complying with the Civil Procedure Rules.

Jeff Shapiro, a lawyer who has written frequently on costs in edisclosure, offered this comment:  “The judgementapproving predictive coding for the disclosure of documents highlights the judiciary’s continued march to proportionate costs in litigation via application of the overriding objective. Review amounts to approximately 70% of total disclosure costs. With the ubiquity of electronic document creation and storage, litigators have an ever-increasing costs’ burden in order to fulfil their CPR disclosure obligations. The judiciary, recognising the realities of modern disclosure where millions upon millions of documents may need ‘to be considered for relevance and possible disclosure’, has proclaimed that predictive coding may be used as a substitute for manual review.”

The cost savings offered by predictive coding will undoubtedly be popular with clients and potentially will give a competitive edge in winning work.

We hope that this judgement will encourage more UK firms to take advantage of the benefits offered by predictive coding.

For more information about this technology, please click here.