The custodian list on the last edisclosure matter I worked on involved 6 custodians and looked similar to this:
Chris Van Winkle
Marketing Groupshare (H: Drive)
Marketing Collateral (paper)
In the near future, I expect it could look like something like this:
Samsung RB RB31FERN Fridge (s/n: 763423253RB)
Britannia Q Line Dual Fuel Cooker (s/n: R-454712131D)
KitchenAid Pro Line Toaster (s/n: KMT4945603CA)
Why? Well, because your employment matter might depend on the times Rob made cheesy toast and the smart toaster might be the only evidence available. Or the product liability matter against your client might depend on the pool of structured data collected by temperature sensors in refrigerators across England and communicated to the manufacturing database. Alternatively, your malpractice case might hinge on the communications between medical devices.
The Internet of Things (IoT) has exploded. Not literally of course, but IDC, a global market intelligence firm, estimates in an infographic that at the end of 2013 there were 9.1 billion IoT units installed globally and given the projected rate of growth by the year 2020 there will be 28.1 billion units contributing to the IoT and adding to the amount of discoverable data in the world. Gartner, the technology and research firm, states in a study that the technology and storage infrastructure in existence now may not be sufficient to hold the enormous amounts of data generated by the IoT.
As businesses are encouraged to reap the benefits of the IoT and technological advances make analysing big data easier and faster it’s only be a matter of time before this data is called upon as evidence to make a case. I am not advocating the immediate collection of appliance data, nor serving your client’s kitchen with a preservation notice, but the idea that email, loose files, and the occasional bankers box of paper is the bulk of your data sources is an outdated one.
So have a serious think about what types of data your client owns and where it resides, because as the IoT grows it may very well be everywhere.
Orion provides consultancy and training to assist clients with the identification, preservation, collection and analysis of potential evidence in document intensive cases. He advises clients on strategies and techniques to help lawyers and corporate clients deploy technology efficiently and cost effectively, as well as assisting them in the fundamentals of document reviews, the design of practical workflow processes and the selection of the technical solutions required to fulfill these goals. He is frequently called on to comment on best practices and new developments in the electronic disclosure and discovery industries.
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, ediscovery.com.
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.
On 10 September we are hosting a complimentary breakfast seminar in London for lawyers and litigation support professionals on “Predictive Coding – How it’s Bringing Innovation to Legal Practice”. We are delighted to have as our guest speaker Ralph Losey, Partner and National e-Discovery Counsel at the US law firm Jackson Lewis who will share his extensive experience using machine learning technology in legal practice. We are also pleased to have as our UK legal expert, Neil Mirchandani, Partner at Hogan Lovells in London who will be commenting on the applicability of these technologies to UK legal practice. Although this technology is not new there is still a lot of uncertainty in the UK about how it works and which cases and which document collections it works best on.
The seminar will include discussion on scientific studies comparing human to computer review, some war stories showing how the technology has worked and the cost benefit analysis looking at a recent survey of corporates and how to control disclosure costs. We are hoping to debate the issues that arise in the UK in relation to the use of this sort of technology and what our experience of it has been. For those who would like to stay on afterwards, there will also be a more mechanical session and demonstration of how to use the technology with Ralph.
If you would like further information about the event please click here and if you would like to register please email us at email@example.com. We are hoping for a lot of audience interaction and you can pose questions for the experts to answer during the session by emailing us or commenting below.
Tracey Stretton is a legal Consultant at Kroll Ontrack in the UK. Her role is to advise lawyers and their clients on the use of technology in legal practice. Her experience in legal technologies has evolved from exposure to its use as a lawyer and consultant on a large number of cases in a variety of international jurisdictions.
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
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.