All posts tagged eDisclosure

New Frontiers in Ediscovery

We are very excited to be launching the inaugural edition of our report entitled: ‘New Frontiers: An Insight into the global expansion of ediscovery.’    The report contains a compendium of 15 articles focusing on how ediscovery is being carried out in various countries around the world.  We have also have included a series of feature articles examining:

  • how ediscovery technology is being used to detect cartels
  • what uses are being found for ediscovery technology in the financial services sector
  • the latest trends in computer forensics
  • new technologies in ediscovery.

Ediscovery has evolved from its origins as a legal procedure used primarily in the USA and UK in litigation matters. Kroll Ontrack’s global expansion over the past ten years has shown there is demand across Europe and Asia for ediscovery technology to search for and review electronic evidence, particularly for competition matters and internal investigations. Download the full report here >>

What does ediscovery look like in 2015?

We asked our global network of legal consultants to report in depth on the state of ediscovery in their respective countries, providing insight into global trends around ediscovery adoption, uses and advances in technology.

The New Frontiers report documents how ediscovery is becoming an important element of the business landscape, even for countries that do not have an obligation to provide ediscovery as part of their legal framework. The important drivers for these countries, including Germany, France, the Netherlands, China and Singapore are more likely to be related to increased scrutiny by regulators, the transparency and compliance agenda, the need to manage mountains of big data and the overriding requirement to reduce legal cost.

Tim Phillips, Managing Director of Kroll Ontrack International Legal Technologies, commented:

“As a leader in the global industry, we believe it is important to document these changes and to highlight ediscovery’s rapid growth as a problem-solver for everything from regulatory compliance to dealing with dawn raids, and from unbundling legal services to forensic investigations.”

The New Frontiers report is available in full here.

Mergers & Acquisitions: Ediscovery takes centre stage

Ediscovery technology has a long association with litigation, so you may be forgiven for wondering about the link to mergers & acquisitions, traditionally the domain of corporate deal-makers.

However, as regulatory scrutiny has increased on a national and international level, more law firms and in-house counsel are using ediscovery technology to swiftly dispense with formal Requests for Information (RFIs).

At the same time, anything that threatens the successful closure of a deal, or the integration of merging businesses is something that is generally investigated using ediscovery and forensic procedures.

Our clients come to us for assistance with matters that stem from the M&A process. Pre- and post-merger audits and merger control RFIs from regulatory bodies such as the European Commission, the UK Competition and Markets Authority, the French Autorité de la concurrence, the German Bundeskartellamt as well as the US Department of Justice are at the top of the menu.

Using ediscovery to enhance due diligence

The time prior to a merger or acquisition deal being finalised is critical, and data from entities being merged or acquired must be assessed as part of due diligence duties. In the past, these reviews typically focused on data in the form of financial reports and accounts; legal documents such contracts and intellectual property; asset valuations and company policies.

However, in this digital age, examining surface level information may not be enough to confidently be sure the deal is not risky or that combining with another company will not create risks.

If the company being acquired operates within markets that have seen anti-competitive behaviour or in countries with a greater incidence of corruption and bribery, it may be prudent to conduct a broader investigation into the company’s activities by examining a selection of unstructured data in audits.

What is unstructured data and why is it important for mergers and acquisitions?

Unstructured data largely consists of personal correspondence in the form of emails, text messages, voice mails and web-based messaging systems such as WhatsApp. Within even a medium-sized organisation the amount of data generated by these applications is enormous. For a global firm, the volume of data is almost unimaginably large. Yet just a handful of incriminating emails containing evidence of cartel activities that have serious repercussions at a later date should a regulatory body decide to investigate concerns relating to dominance.

By the same token, structured data (which is normally transactional data, stored in tables to record things like customers, products, orders and payments) may also be examined to look for anomalies that might signal a compliance risk using specialised data analysis tools and visualisation software.

Intelligent review technology is aiding strategic decision-making

Ediscovery technology can make short work of huge data sets both collecting, filtering and analysing data to get to the key information as quickly as possible. Armed with potential risks or given a clean bill of health, informed decisions can be made surrounding the deal, which can then proceed in a compliant and timely manner.

If this kind of investigation has not been possible prior to the merger or a company has doubts about an entity it has acquired or merged with, clients also come to us for post-merger compliance investigations which vary in scope from the very focused to the very broad. Ediscovery technology can also assist on an operational level by harmonising data estates of the merged companies.

Taking the pain out of Phase Two Requests for Information

If the European Commission is worried about the possible effects of a merger on competition, it may conduct an in-depth analysis of the merger in the form of a Phase II Investigation.

This is involves a more extensive information gathering exercise, working to a strict time-table, similar to ediscovery in the US or edisclosure in the UK. Looking at the deal from a variety of angles, (e.g. whether the proposed merger would create a monopoly, whether it will impact on the supply chain or increase the likelihood of price-fixing cartels forming between competitors), Phase II Investigations can be data intensive exercises, needing ediscovery expertise to ease the deal through.

Ediscovery services can help ensure this process runs more efficiently for the parties involved by:

  • Assessing the likely complexity and cost of the data retrieval exercise, to support efforts to reduce the scope of an RFI.
  • Assisting internal IT teams in the collation and collection of the data requested
  • Ensuring this data is stored securely and processed quickly
  • Providing analytical tools to check documents are relevant to the request and do not fall under privilege
  • Working in a timely fashion to ensure the request for information deadline is met.

Phase II Investigations are often time pressured and delays can threaten the completion of a deal, so it is important to ensure that all teams are focused on the overall goal of the proposed merger.

Working with an ediscovery provider can expedite the submission of requested information, potentially speed up any decisions or remedies and get the deal through.

If you would like to find out more about how Kroll Ontrack can assist with mergers and acquisitions, please contact Rob Jones.

About Rob Jones

Robert Jones is the manager of Kroll Ontrack’s team of Legal Consultants in Continental Europe, the Middle East and Africa.

Are there really no barriers to electronic commerce? Electronic evidence will decide.

Are there really no barriers in ecommerce?

Shouldn’t the Internet enable the free purchase of goods and services anywhere in the world no matter where you are located and what time it is? Well…the Internet might not be fully “open” to everyone after all. Have you ever noticed when purchasing an article online that you have been automatically redirected to another site before being able to carry out the payment or that you are unable to acquire a product online from where you are currently located? The clearest example most of us will probably recall is an annoying error message saying “this video is not available in your country” when attempting to view media content.

Recently, EU Competition Commissioner Margrethe Vestager announced that she intends to carry out an inquiry into the e-commerce sector, focusing on contractual restrictions and geo-blocking in the online sales of goods and digital content. The inquiry is due to start on 6th of May 2015 and will most certainly affect major corporations including Apple, Amazon, Youtube and Paypal amongst others major e-tailers.

What form will this investigation into the e-commerce sector take? The European Commission will make use of its investigative powers and send out numerous information requests to the e-tailers and other stakeholders concerned. Pursuant to Regulation n°1/2003 the European Commission is entitled to request any corporate documents, both in paper and electronic format that are related to the investigation. In practice, companies affected by this investigation will have to rapidly identify within their corporate repositories the requested documents in order to comply with the frequently tight deadlines set by the European Commission. Most importantly, if companies fail to supply the requested information before the deadline or supply incorrect or misleading information, they will risk fines of up to 1% of their total turnover in the preceding business year which could well cause financial distress for many companies.

How can companies who sell goods and services online best prepare for this? It is crucial for companies to be fully prepared for these potential information requests with the necessary technical means to identify and analyze information currently under scrutiny within tight time frames. To this effect, document review platforms that include keyword searching and other advanced analytics such as predictive coding (for further information please refer to these articles: The Final Act: Predictive coding take centre stage and Predictive Coding and Benedict Cumberbatch) can be a very useful tool and ally for companies in these situations since potentially relevant information will be identified more rapidly and high fines will be avoided.

In summary, e-tailers should be sufficiently prepared from a technical standpoint with professional edisclosure and review tools to locate and analyse data within their repositories since most of the evidence will be electronically stored information (ESI). This will allow them to respond to potential information requests within the prescribed time-limits and avoid heavy fines.

About Thomas Cavro Dupont

Thomas Cavro Dupont is a Discovery Services Consultant at Kroll Ontrack in the EMEA region and is based in Germany. He advises lawyers around Europe and their clients on how to effectively manage electronically stored documents in matters such as competition, litigation and internal or regulatory investigations. Before joining Kroll Ontrack in 2014, he worked as an Associate in leading international law firms in Brussels, Paris and Madrid advising clients on competition law issues. Thomas also worked as a Project Manager for a major ediscovery provider in London specialising in ediscovery projects in the antitrust and finance areas. Thomas, who is legally qualified in Spain and France, obtained his Law Degree from the Universidad Pontificia Comillas in Madrid and received an LL.M. in European Legal Studies from the College of Europe in 2009. His native languages are Spanish and French and he is fluent in German and English.

Our new Document Review centre

­It is an exciting time at Kroll Ontrack, because we are expanding our document review service in Europe. In particular, we are in the process of opening our own dedicated review facility in central London. But we are not new to this. Since 2008, Kroll Ontrack’s clients have been using our expert contract lawyers for review exercises in litigation matters and competition investigations.

One of the great things about using Kroll Ontrack’s lawyers to supplement a review team is that not only do our professionals come with fantastic legal and language skills; they are also the experts in the review technology.

Having completed scores of reviews on Review (and previously Ontrack Inview), our review teams know the platform back-to-front, meaning that they are able make the most of the technology, and actually perform a review in a way that is much more efficient than someone who only carries out a disclosure exercise or investigation every now and then.

With all this growth, we are seeking further people to partner with us on document review exercises. If you are a lawyer or a paralegal who would like to work with our clients on high-profile litigation matters, regulatory investigations and internal investigations, we would love to hear from you! You will be working closely with top international law firms and Kroll Ontrack’s technology experts. To register your interest in working with us on such projects, please click here.

About Daniel Kavan

Daniel Kavan leads Kroll Ontrack’s Electronic Evidence Consultancy team in Europe. He and his team of experts advise lawyers and their clients on how to manage and analyse evidence from emails and other electronically-stored documents in legal matters including litigation, arbitration, internal audits and regulatory investigations.

Common Oversights in Ediscovery



If you’re getting married, buying a house, or doing anything you have little or no experience in, then consulting with people who have already travelled that road and have experience to share is a good idea. In a similar way, we turn to experts for legal or business advice. When it comes to ediscovery, there are many benefits in talking to technical experts.

My knowledge of ediscovery was low 3 weeks ago when I joined Kroll Ontrack as a summer intern. On a quest to learn as much as I could, I thought it would be useful to ask the experts around me at Kroll Ontrack for some advice on ediscovery best practices and how to avoid mistakes. So here are their technical tips on how to manage ediscovery projects slickly and efficiently in the future. In this first post I will focus on what not to do. In a follow up post I will offer some additional best practices.

 Digging blindly for data

Don’t underestimate the importance of carefully considering which data sources and custodians you need to collect from and process. Ediscovery providers can provide great technology and services to reduce the amount of data that needs to be reviewed (for example, by providing Early Data Assessment services or by using keyword filters). They can also optimise the review process (by offering, for example, predictive coding technologies) BUT it is very likely that the more data you collect, the more documents you will need to review. You therefore need to make careful selections based on what you need to prove the case and meet your disclosure obligations, and always with the case budget in mind.

Cutting costs with data collection

While thinking carefully about where to gather your data from, at the same time you do you need to be as inclusive as possible when collecting data and avoid the temptation to exclude custodians simply to save money. It can be time consuming and expensive to go back and collect data that really is needed later on.

Focusing on reducing the review set at any cost

When preparing to process large volumes of data from multiple custodians, it might seem appealing to choose global deduplication over custodian deduplication simply because this usually results in a smaller document review set.

Choosing global deduplication means that some custodians’ data sets will be incomplete as duplicates from one custodian set are removed because they already appear in the set of another custodian.

It is important that the right approach is carefully considered based on anticipation of the needs of the case and future production requirements, and not simply on a desire to keep the review set to a minimal size.

Relying on Assumptions

Keep things clear! Everyone only knows what they are told so don’t cut corners. Lawyers or companies engaging with an external expert should make sure they provide all the necessary details of the case (case deadlines, procedural milestones, key facts and issues, important document / data types, what is at stake financially or otherwise) as soon as they are known.

Similarly, experts need to be clear about the assumptions used to assess data volumes and the cost of processing it. No-one should under- or overestimate expectations about data volumes and cost. As far as possible work with real metrics taken from the data itself.

Over complicating the review process

When designing your document review process, keep your category tree (the list of topics or issues than can be assigned to a particular document) as simple as possible. This directly affects the success, speed and quality of the review.

Tagging whole families consistently

When categorising families of documents it might seem sensible to categorise all members of the family in the same way – it makes sense that if an email is relevant, all the attachments should be relevant too, right?   Wrong. The chances are that only some members of the family will have relevant content and that may only be relevant to a particular issue. When you tag all members of the same family consistently you lose clarity as to the content of each individual document. It becomes difficult to collate precisely those documents relevant to a specific issue without re-reviewing documents.


I don’t think ediscovery is effortless – but with the right help you will be able to navigate its maze of complexities with much more ease! Like most relationships, the success of an ediscovery project and a case as a whole lies in good communication and trust between all parties involved.

The Little Things

Whether it’s zed rather than z, lawyer in lieu of attorney, or philosopher instead of sorcerer, it’s often the little things that separate the UK from the US. Over the last year whilst living in the UK and working for Kroll Ontrack, I’ve grown accustomed to how much the little things can make the difference in not being considered a ‘loud-mouthed yank’.

The same goes for ediscovery… err, edisclosure. The subtle asymmetry between the UK and US disclosure schemes requires distinct procedures and flexible project management. In the US, the scope of discovery is expansive, constituting “any nonprivileged matter that is relevant” (i.e., “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”) “to any party’s claim or defense,” whereas in the UK, the court has a menu of options at its disposal to limit disclosure “to that which is necessary to deal with the case justly,” going so far as including “an order dispensing with disclosure” altogether.

In the situations where disclosure does exist, it’s important to recognise our client’s specific needs under the requisite procedural rules. In the US, parties are under the duty to state their “views and proposals on . . . any issues about disclosure or discovery of electronically stored information.” Compare that broad obligation to the UK pre-Case Management Conference rule requiring parties specifically to discuss technical issues, such as:

  • the use of keyword searches
  • the use of software tools
  • the methods to be used to identify duplicate documents
  • the use of data sampling
  • the formats in which electronic documents are to be provided

The ultimate purpose of these discussions is to serve “the overriding objective of enabling the court to deal with cases justly and at a proportionate cost.” At Kroll Ontrack we can advise our clients on the best tools and techniques to consider in order “to reduce the burden and cost of disclosure,” and we provide transparent pricing to allow our clients to fulfil their duty to the court.

Beyond us understanding what our clients need, we also should be mindful of what our clients want. Time and again it’s the little things that keep clients satisfied and help grow long-term relationships. With our new review platform, Review, we’ve addressed a few of them: cut-and-paste functionality between Review and outside applications, the ability to quickly and easily control hosting costs with text- or native-only processing, and one of the most-often requested features, a straightforward sign-on process. When you think about it, the sign-on process should be as easy as possible, enabling our clients to log-in securely and quickly and letting them get to what actually matters. Edisclosure is difficult enough without having to remember a secret handshake and a knock, tap, knock-knock on the door. Now you just put in your username, case name, and password, and Bob’s your uncle!

Every day we strive to make edisclosure elementary. After all, it’s the little things. How we can make edisclosure simpler for you?

About Jeff Shapiro

Jeff joined Kroll Ontrack in July 2013, working as a Case Manager within the Legal Technologies practice group. In October 2014, Jeff was promoted to the newly created role of Managed Services Consultant. He provides end-to-end project management and consultancy for ediscovery and edisclosure clients, with emphasis on Fortune 500 companies, as well as Am Law 200 and Global 100 law firms. Jeff ensures that projects are carried out to the highest possible standards, within relevant timelines, and to the specification and cost as agreed with the client. He consults on the technical requirements of Civil Procedure Rules and practice direction, including disclosure forms, production formats, predictive coding, and Case Management Conference planning. Jeff specializes in commercial litigation, regulatory commission requests, and internal investigations, with emphasis on early case assessment and review strategy. Whilst with Kroll Ontrack, Jeff developed a ‘Case Management Manual’ to capture and consolidate existing procedures, document unwritten knowledge, and identify cost-efficient opportunities to enable a consistent and high-level of service to clients. Prior to moving to the UK and joining Kroll Ontrack, he worked for several years with leading law firms in their international ediscovery practice groups. Jeff received his Juris Doctorate from The Syracuse University College of Law, and he is licensed to practice law in the State of Virginia.

The language of ediscovery

At Kroll Ontrack, we have a policy to write the word ediscovery as ediscovery, not eDiscovery or e-discovery.

Although this was a policy invented far from here by our marketing gurus at our global headquarters in Minnesota, it is a policy I fundamentally agree with. Ediscovery is a common noun (or mass noun, to be exact), and a common technological function, just like email. We don’t write eMail. There is no justification in grammar in capitalising the second letter. Email is defined and written as email in the Oxford English Dictionary (and ranks as one of the top 1000 used words), and I predict that it’s just a matter of time until ediscovery is similarly defined there too.

The term ediscovery has its origins in electronic discovery, just like email has its origins in electronic mail. In the same way email is now used to do much more than send an electronic letter, ediscovery technologies and processes are used to do much more than manage the process of discovery in American litigation. At Kroll Ontrack in Europe we regularly apply ediscovery technologies and best practices to cases including regulatory investigations, internal investigations, arbitration matters and of course disclosure exercises in English disputes.

In England, we have been using the term disclosure instead of discovery since the Woolf reforms in 1999, to define the process of adverse parties sharing evidentiary documents in ligation matters pursuant to the Civil Procedure Rules (CPR). Because of this, edisclosure is often used to describe the disclosure of electronically stored information (ESI). I take no issue with the term edisclosure, and in fact it is used in the title and address of this blog, but I prefer generally to use the wider term ediscovery, even in the UK. Our ediscovery technologies and expertise can be applied far wider than to assist with disclosure of ESI. Whether it is an early case assessment in Durham, a discovery exercise in the Dublin, or an arbitration matter in Dubai, ediscovery can help.

For more information about how we are helping clients in EMEA with our ediscovery technology and expertise, please visit the new European version of our rather appropriately-named website,

About Daniel Kavan

Daniel Kavan leads Kroll Ontrack’s Electronic Evidence Consultancy team in Europe. He and his team of experts advise lawyers and their clients on how to manage and analyse evidence from emails and other electronically-stored documents in legal matters including litigation, arbitration, internal audits and regulatory investigations.

The future of ediscovery

The Future of Ediscovery

Last week saw the 9th Annual Information Governance & eDiscovery Summit take place at London’s Marriott Hotel, Grosvenor Square. The ever important issues surrounding information governance and ediscovery were thrashed out by industry leaders over two days.

A wide ranging panel of speakers led the summit from judges to authors, directors to barristers, and lawyers to company presidents, from a wide range of leading corporate and legal organisations. Day one’s keynote panel included senior representatives from three regulatory bodies discussing current enforcement priorities and expectations- Allison C. Stanton from the US Department of Justice, John David Kuchta, Federal Bureau of Investigations, and Keith Foggon of the Financial Conduct Authority. The increasingly important topic of information governance was discussed, argued and dissected throughout the majority of day one, split up by a series of afternoon breakout sessions.

Day two saw the attention shift to the world of ediscovery and current issues engulfing the industry. Technology visionary, Richard Susskind, kicked off the morning with an insight into how technology has redefined the in-house legal process, which led perfectly into Kroll Ontrack’s main stage appearance. Aiming to do things differently, Kroll Ontrack opted for a 15 minute power-play, exploring the past, present and future of ediscovery, specifically discussing the hot topic of predictive coding technology. Leon Major offered an insight into how ediscovery in Europe has changed over last five years, Katie Fitzgerald spoke about how predictive coding is making a massive impact in European legal practice, and Daniel Kavan predicted how ediscovery may be done very differently within the next few years, including ediscovery in the cloud, voice control and app access.

Throughout the event we had lots of interesting conversations, met many new people and reconnected with a few old friends. Kroll Ontrack’s return as one of the event’s sponsors aligned with our recent launch of www. our new website and a new suite of products including Review, our new document review platform. Our (rather bright) electronic exhibition stand allowed delegates an insight into our recent developments and the chance to meet some of our experts.

The Future of Ediscovery

You can find out more about predictive coding, our new document review platform or anything else we’ve been up to at Kroll Ontrack by visiting or following our Twitter feed.

About Anthony Roberts

As a Legal Consultant at Kroll Ontrack, I work with a number of leading law firms and corporate clients advising how best they can achieve their electronic discovery and computer forensic goals, within set time frames and to budget, by evaluating the best available technologies and ensuring the right solution is found for each potential matter.

Money, Money, Money

As everyone knows, businesses are becoming more and more focused on controlling expenditure due to both sound business practice and the general economic downturn. The cost management regime in the UK courts puts additional emphasis on the need to set and adhere to budgets for parties involved in  litigation. In a regulatory context, corporates often see the benefits of carrying out pro-active compliance audits but can be put off from reviewing electronic documents due to (sometimes misplaced) concerns about escalating costs.

I have worked in the edisclosure business for 9 years now and can tell you that there are three main areas in which edisclosure pricing is generally criticised: it is considered to be too expensive and/or too unpredictable and/or too difficult to understand. Add to that the difficulty in accurately comparing pricing from different suppliers and you have a nightmare scenario for law firms and their clients.

At Kroll Ontrack, we recognise these concerns and have introduced new pricing models with the overriding aim of simplifying and providing certainty to clients for edisclosure costs. These models help not only our clients who need our assistance on individual matters but also those who are looking to outsource all of their edisclosure projects  for a fixed monthly fee.

In response to these pricing models, Mark Surguy, partner at Eversheds has commented as follows: “The significant volume of corporate data, the new civil procedure rules on costs budgeting and the difficult economy have put e-disclosure costs in the limelight. Kroll’s innovation in addressing the issue is exactly the kind of flexibility we need to get these projects executed commercially.”

For more information on these pricing models please contact us to discuss them

Next week, Graham Jackson will be writing a blog post on data breaches. You can see a preview below.

Andrew Szczech, Sales Director, Legal Technologies

About Andrew Szczech

Andrew Szczech, Director of Legal Technologies Services, EMEA, is responsible for the business development of Kroll Ontrack's legal technologies business in Europe, focussing on the provision of electronic evidence services to law firms and corporates. These services include e-discovery, computer forensics and consulting which are provided in order to assist clients in multiple practice areas including dispute resolution and antitrust. Frequently, there is a need for solutions to address complex cross border data protection challenges. Andrew also manages the growth and development of global accounts throughout Europe.

Discovery, Disclosure or Both?

Budgets, Cost Management, new processes….is this train going to stop? Note that I didn’t say ‘gravy train’, as this is about understanding and better practices, and is not a money spinning exercise. Back to the point, the train shows no signs of slowing! We are still going through the evolutionary stages of implementation and understanding, although the perception is that we should all be fully competent by now.

Costs need to be looked at more closely, with the end client in mind and with a greater degree of openness. As a consequence, Budgets need to be prepared, discussed with clients and other parties, and ideally agreed upon at the onset of proceedings. In line with openness, these need to be followed closely and monitored by the parties, not only for the courts but also for their respective clients.  All of this makes good sense, not only from a client’s perspective but also one of judicial prudence. The Processes (procedures / protocols / disclosure options) are articulated in the CPR but the industry is still finding its way around them and how, when and where they should be carried out for best practice.

For the majority, the changes to our civil procedures are becoming old news, if not the minutiae of how to implement of them. Today I looked at one of my ‘Linkedin’ groups to find a full score of requests for the Precedent H document complemented by a host of negative comments.

Remove all the dos, musts, don’ts and shoulds and what you have left is a very simple message: start to think about discovery and disclosure very early on in the process (and that includes thinking about the volume of data that will be required or is available), and communicate clearly between the parties and clients participating in the budgeting process. These two things will make it much easier to deal with the costs issue generally.

It may not have escaped your astute observation that I mentioned discovery and disclosure not only in the same sentence but also as part of the same set of processes. This was deliberate. The use of these terms together may appear alien to some and  confusing. I would, however, “put it to the house” that we are developing a hybrid process under the new rules within the CPR, whereby we start early on with “Discovery” to show us what we have, in order to make the decisions as to costs, budgets and most appropriate process  for the client, followed by “Disclosure”, the review and identification of documents to be exchanged with the other parties and receipt of the same.