All posts in Best Practice & Top Tips

Which is the best location for document review?

A recent report by A. T. Kearney analysing the global outsourcing market found that of the top 10 most popular countries, Poland was the only European country listed. The rest of the top ten were all located in Asia. This trend has also been present when it comes to legal process outsourcing, which has steadily been drifting eastwards. But in today’s global world, how do you choose the right location for your review? Just as each document review project is unique, there are advantages and disadvantages to going further afield for your document review services.

Far eastern promises?

Document review providers in the Far East can offer attractive savings compared to those in Europe and America but scratch the surface and often there are issues which could make these locations a false economy. Common issues include:

  • Poor connectivity
  • Language and cultural barriers
  • A different approach to project management
  • Underqualified staff
  • Time-zone issues

Legal process outsourcing such as document review is different to other business functions (for example, customer services or software development). Clients using document review centres are working to strict deadlines and success relies on a combination of technology, project management and legal expertise. Often, the quality of service in far eastern locations might not meet these requirements.

Look further West… 

We recently opened a document review centre in Poland and clients have found it a useful resource for cases with cost conscious clients who still want a quality document review service conducted by EU qualified lawyers.  The feedback we have received has been very positive with clients commenting on:

  • Superior infrastructure
  • A more compatible time zone, especially for European clients
  • Superior English language skills
  • The availability of  European languages
  • EU data privacy compliance

Which is the right location for you?

Outsourcing abroad isn’t always the right option. Some clients prefer the convenience of being nearby or choose to keep data within their own country for privacy and security reasons. Our flagship London document review centre, as well as German document review centres offer high quality, in-country solutions for cases that benefit from a more local approach.

For more information on our Polish document review centre or our other review centres, please contact david.harris@krolldiscovery.com

Beyond record keeping: the importance of Information Governance

Information governance is no longer limited to simple record keeping. In today’s workplace, it is the backbone of best practice across business functions and encompasses:

  • information security
  • compliance and risk management
  • privacy
  • data storage and archiving
  • business operations and management
  • IT management
  • Business intelligence and big data

In my role as an ediscovery consultant, I have seen the impact information governance has on legal scenarios involving litigation, regulatory investigations and data protection related requests such as the right to erasure. Furthermore effective information governance can bring many benefits and ensure the smooth management of various legal scenarios that depend on the production and identification of electronic evidence such as right to erasure requests.

Companies thathave their house in order generally find that requests for information are fulfilled with minimum disruption to their business. Rather than spending time searching for electronic documents, they can respond to the request right away, honing in on data quickly. Because they understand their data architecture searches  collection can be less widespread and therefore cheaper. In contrast, those with poor infrastructure waste valuable time and money seeking this out and often spend more on forensics services, processing and hosting fees.

In terms of compliance, we find that information governance and efficient compliance programmes go hand in hand. You can’t have a good compliance programme if you do don’t have a handle on where your data is, what data you are collecting and what backup systems are in place. Poor information governance provides a useful camouflage for those engaged in unlawful behaviour. Those who have been embroiled in regulatory investigations or experienced fraud know all too well the financial and reputational damage caused by not preventing misconduct.

Take the lead towards improving information governance at your company

If you have concerns about how your company is managing information, it is vital that you raise the issue with senior management, IT and other departments and begin the process of enacting change. As general counsel, your legal knowledge and responsibilities make you a key stakeholder in the process.

Where do I begin?

Some elements of information governance do require technical knowledge and specialist services such as ediscovery and data analytics. An experienced ediscovery vendor will be able to offer consultancy to tailor a specific programme for your company’s needs. However below is an outline of the typical steps involved in improving information governance:

  • Mapping and assessing data estates

Using consultative assessments, data mapping, system inventories and data mining technologies, your consultant will outline how important or sensitive data is created, secured, managed and retained throughout your organisation.

  • Analysing and classifying data

Once you know where your data resides and the extent of it, this data can then be defined and classified. Redundant and obsolete information can be eliminated using a specialist review platform, freeing up server space and reducing backup costs. Key information can be preserved and managed more easily.

  • Building context and monitoring activity

Technology such as predictive data analytics can then be deployed to mine critical information, evaluate the facts in context and define relationships between data sets and measure trends.

With stronger insight into trends and anomalies in targeted sets of content, you can holistically manage or predict risks and make informed legal decisions whilst reducing reactive legal fees.

  • Futureproofing your systems

Information governance is an ongoing process and not a one off project. Your ediscovery consultant will be able to design and implement sustainable policies, technology enabled solutions, flexible training programs, and periodic audits. This will ensure your information governance program can stand the test of time as cultural, business, legal and technical needs evolve.

About Tina Shah

Tina works at Kroll Ontrack as a Legal Consultant in Continental Europe. Tina has a variety of experience in the legal sector, including working as a lawyer for a global project management firm organised to provide comprehensive consulting services for FDA regulated companies and conducted extensive e-disclosure/document review for high profile litigation cases. Tina is a US-qualified lawyer and fluent in Italian and Spanish.

Face to Face with the Regulators in Tokyo

On July 26th, our Tokyo office hosted a unique event: Face to Face with the Regulators.  Delegates were able to get up close and personal with regulators from the US Department of Justice, US Securities & Exchange Commission and the US Federal Bureau of Investigation for a discussion on the following topic :

  • Enforcement trends
  • Industries under the regulators’ spotlight
  • The conflict between US regulators’ expectations and business culture in Japan
  • Clarifying regulators’ expectations
  • Managing ediscovery requirements and tips for a cost-effective process

Although the day was designed to help Japanese businesses, the insights that were shared are valuable for European businesses who have subsidiaries in the USA.  Below is a high level overview of the the key points that came out of the day’s discussions.

  1. Pay now or pay later. Implementing and investing in compliance programmes is something that will save your company money in the long run. It is always better and cheaper to uncover wrongdoing and use leniency programs than undergo an investigation triggered by a whistleblower or having attracted scrutiny from regulators. This applies to both anti-bribery and antitrust cases.
  2. Collaboration between national and international regulators is increasing each year.  This means there are more resources to conduct investigations leading to more prosecutions and subsequently more risks for companies operating domestically and abroad.
  3. Third party subsidiaries, partner organisations and suppliers remain a source of considerable risk for companies. Companies need to be vigilant and ensure that their compliance programmes and training extends to these organisations and individuals. Management needs to buy into to compliance and communicate directly with those on the ground to understand and manage risks.
  4. Individuals are becoming more important to investigations. Programs have been introduced that financially reward individuals for reporting wrongdoing to the authorities. This will incentivise potential whistleblowers into taking action against their companies. Equally, individuals violating antitrust and anti-bribery legislation are at risk from prosecution and can receive harsh including fines and prison sentences.
  5. Ediscovery is essential for effectively responding to regulatory investigations and facilitating efficient compliance programs. The sophistication of this technology means you can respond quickly to requests for information, uncover and preserve key evidence and avoid excessive costs associated with processing large volumes of data

Thank you to all of our speakers, delegates and our colleagues in the Tokyo office for making the event so informative and inspirational.

Ediscovery Costs: Pay as you gone?

eDiscovery On-Demand

In today’s no-frills ‘on-demand’ economy, customers apparently want to rent rather than own things. Why commit to purchasing a car when you can order a cab instantaneously? Why take on permanent lawyers in-house when you can hire temps as and when required? And in the ediscovery world, why pay astronomical sums to license technology in-house when you can tender out work to vendors on a project-by-project basis? The way ediscovery technology is bought and sold is a hot topic.

The latter ‘pay as you go via tender’ model has been the preferred modus operandi for most law firms in the UK and Ireland. Many of the firms who have tried to make ediscovery into a ‘profit centre’ by licensing technology in-house have failed to do so. In my experience the reasons for this have included the following:

  • The up-front hardware costs can be enormous;
  • Technology becomes obsolete quickly and law firms are not set up to maintain it;
  • A small team (often only one person) within the firm knows how to operate the technology. The firm therefore becomes overly-reliant on those people; as and when they leave they take the key operational knowledge with them. One firm I deal with has been without a litigation support manager for 2 years and hires external consultants to operate their system on an ad hoc basis;
  • The ‘profit centre’ argument may make sense on paper, but in reality the technology cost is often the first line item to get written off of a client’s bill.

A False Economy?

That said, the tender model is not without its difficulties. Ediscovery is not a taxi service – it is a complex blend of technological and consultative processes which requires matter-specific application. Not to mention time and costs. Associates often spend an inordinate amount of (non-billable) time comparing quotes that seem to require a PhD in Mathematics to comprehend. Even if estimates are put into a standardised format, predicting data volumes can be as kind to the forecaster as predicting the British weather. All of which goes against the maxim that costs in litigation should be both reasonable and predictable.

The reality is that ediscovery is an integral part of the modern litigator’s practice needs. Whilst only some matters proceed to the disclosure stage, the perusal of electronic data is often necessary to assess merits at the outset of a matter. At that stage a client is just about content to invest money in legal advice, let alone to approve a disbursement for technology to enable that advice. Lawyers now need the comfort of an in-house system where they can upload data as and when they please without incurring the stress, time and moreover the uncertainty of a full-blown tender process. Could you imagine having to contact three or four companies every time you needed to conduct some legal research or find a precedent? This has led to forward-thinking law firms pursuing a third option for the procurement of ediscovery services – the subscription model.

Just Sign Here…

A subscription model (aka a Software as a Service model) is a fully-flexible solution which allows you to pay a fixed monthly sum for a certain volume of data to be hosted across an unlimited number of matters. The pricing is set out in ‘bands’ so that you have the flexibility to increase your hosting volume without incurring any extra costs up until you reach the next tier. Each offering is designed bespoke to the client’s needs. The advantages are as follows:

  • There is far greater certainty on costs than under a ‘pay as you go’ model;
  • Lawyers can save significant time and stress by avoiding the tender process;
  • There is a tangible value-add to point your clients to. ‘Innovative’ has become an overused buzzword in law firms’ self-descriptions. Relieving clients of the uncertainty of ediscovery costs and being able to analyse key electronic data immediately when instructed on a matter are strengths to genuinely shout about;
  • There is no need to worry about paying huge up-front sums to invest in technology. Your provider will maintain the hardware and software in their own data centre. Moreover, you will have the ability to host data in any of the provider’s global centres and on any of the review platforms that they offer. I have come across dozens of organisations who are using an outdated review platform purely because at the time they licensed it, it was cutting-edge. As Blackberry has discovered, 5 years is a long time in business;
  • You can build a relationship with people at the provider, and set in motion a style of working that suits your firm, so that you receive a consistent, repeatable service. There is also no concern about an over-reliance on one person at your firm; some of our project managers are considered by their clients as extensions of the legal team.
  • You can decide how to bill your clients for ediscovery services.

How much does it cost?

Naturally, firms will be concerned that a subscription model is only suitable for those firms with the deepest pockets. That is simply not the case. Rather than focusing on costs, you are advised to approach vendors with a ‘wish-list’ of services and a budget in mind (it may be the last time you need to contact more than one provider). We have law firms who are able to service their clients’ needs with a spend of around £10,000 per annum. Small change for speed, reliability, and a competitive advantage.

Time to get off the app and into the driving seat.

About Hitesh Chowdhry

Hitesh Chowdhry joined Kroll Ontrack’s London office in July 2014. He sits as a consultant within the Electronic Evidence Consultancy team, advising lawyers and their clients on how to effectively manage electronically stored documents in litigation, arbitration, and internal or regulatory investigations. Hitesh studied law up to Master’s level at Kings College, London. He trained as a solicitor at City firm Penningtons LLP, and qualified into the litigation department there in 2008. Hitesh moved on to join the Treasury Solicitor’s Department in 2010, where he acted on behalf of the Home Secretary in human rights claims. Prior to joining Kroll Ontrack, Hitesh spent one year working as a document review lawyer at various US firms in the City of London. Hitesh is currently studying an Executive MBA at the Cass Business School, London.

Subject Access Requests: managing the process with minimum pain

Subject Access Request

What is a Subject Access Request?

Under section 7 of the Data Protection Act 1998 (DPA), individuals are entitled to access the information that an organisation holds about them.  The majority of subject access requests arise from former employees who are engaged in a dispute.  However, in this privacy-conscious age, some individuals may simple want to know what personal information a company is holding.

How common are Subject Access Requests?

Because requests only cost £10, more companies are receiving requests from disgruntled ex-employees who want to know what information their former bosses have on them.

How do I fulfil a request?

Delivering the information held on an individual can be surprisingly challenging. Businesses must carry out detailed searches which can include information held in emails, databases, paper records, CCTV records and spreadsheets. In the age of big data, what seems like a simple request on the surface can quickly become complicated and time-consuming.

Once collected, the data must be disclosed in an intelligible form.  Where necessary, companies must include supplementary explanatory information (e.g. if codes have been used) and supply context to the data that has been held, outlining:

  • What personal data has been collected?
  • How was the data obtained and from which sources?
  • Why was data pertaining to the subject processed?
  • Who has received data about the subject

What can be done to make the process easier?

1. Get your house in order
Sprawling data estates and inconsistent approaches to archiving can make searches difficult and inaccurate. Improving information governance in general is best practice, not only for handling subject access requests but for compliance with other legislation such as the GDPR.

2. Nominate a point of contact

Subject access requests must be completed within 40 days of receiving the request. Given the breadth of information held, the request is often handled via multiple departments. Cooperating across departments can challenging and 40 days can quickly disappear. Nominating a single person or department to handle such requests is a great start in streamlining the process and meeting the deadline.

3. Use technology

Ediscovery technology is designed specifically to search, filter and analyse data, making it ideally suited for responding to subject access requests. Ediscovery consultants can advise on how to collect, search, review and produce the data in an efficient, cost-effective and expedited manner.

4. Get expert advice

We guide our clients to consider various sources of information and advise on how to get the data extracted most easily. This may include email systems, server file shares, document management systems, cloud platforms and structured databases such as HR systems or accounting systems.

5. Protect personal data belonging to others

Personal data is often tangled with data belonging to other people or data that is confidential to the company. It is easy to let data pertaining to someone else slip through the net and in trying to comply with the Data Protection act, actually end up breaching it.

Information  should be carefully reviewed before being handed over to the data subject. Managed document review services can assist by reviewing the documents in accordance with your guidelines and flag any concerns about data.

To find out more about managing subject access requests, please contact one of our consultants.

 

A practical guide to predictive coding

Did you miss out on our practical predictive coding event? Not to worry! We’ve created a twenty minute tutorial video that will guide you through the basics of using predictive coding technology.

Presented by Kroll Ontrack’s predicitive coding gurus and using real life case studies as examples, you will learn how predictive coding technology works and how you can use predictive coding technology in your own cases.

We hope you enjoy the video and find it illuminating, but if you have any further questions please get in touch in the comments or by emailing enquiries@krollontrack.co.uk.

Practical Predictive Coding

 

 

Our German Document Review Centre is now open

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.

 

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

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.

 

Is it time for banks to take greater control of their legal spend?

Legal fees incurred by banks can have a huge impact on profits. Deutsche Bank provides a prime example of this; according to data from Bloomberg, they have spent more than any other European financial institution due to a combination of regulatory fines and litigation costs.  Around 1.2 billion euros were earmarked for litigation. These legal costs have, in part, led to the bank reporting a  2.1 billion euro loss in the fourth quarter with the bank’s stock falling to the lowest value since 2009. In contrast, Bank of America’s profits rose by 10%, in part due to a reduction in spending on legal fees.

This leaves in-house lawyers in an awkward position when regulatory scrutiny and in-progress litigation cases are unavoidable but they are facing more pressure to cut cost.

The first port of call for any in-house counsel managing regulatory investigations is usually a trusted law firm, Yet, with the culture of billable hours being so prevalent, are law firms in the best position to provide the improved efficiencies and reduced costs in-house counsel are seeking?

Indeed, such is the concern about spiralling legal costs that the Competitions and Markets Authority, an organisation more associated with causing legal fees, recently announced that plans to investigate law firms in light the following concerns:

  • Whether clients can drive effective competition by making informed purchasing decisions;
  • Whether clients are adequately protected from potential harm or can obtain satisfactory redress if legal services go wrong;
  • How regulation and the regulatory framework impact on competition for the supply of legal services.

Kroll Ontrack is hosting a seminar discussing this difficult topic, with speakers from leading banks (Lloyds, Barclays) and top law firms (Dentons and Humphries Kerstetter). In what will no doubt be a fiery debate, the panel will discuss:

  • How recent ‘big ticket’ regulatory investigations have affected the banking world
  • Using new technology to reduce expenditure
  • Leveraging buying power when using law firms and other professional service providers
  • Discussing the relative merits of fixed fee vs billable hour pricing structures
  • Examining the pros and cons of unbundling legal services

To register for the event, please click here.