All posts tagged Litigation

The Litigation Journey (and 7 things you need to know about disclosure)

Last week I attended a half-day seminar in London called The Litigation Journey. The session, organised by the Commercial Litigation Association (CLAN), was one of the best legal conferences I’d been to, mainly because it took a “TED talk” format where each of the many varied speakers was limited to a maximum of twenty minutes, which was about right for my attention span!

My Kroll colleague John Murphy presented the 100+ litigators in the room with some fascinating case studies on the recent trends in fraud investigations and painted a picture of what a typical fraudster in an organisation might look like.

I followed by presenting the seven things every litigator needs to know about disclosure. In summary, these were:

  1. Predictive coding works.
  2. Predictive coding works!
  3. Edisclosure is not just for big cases.
  4. An edisclosure provider can help you budget.
  5. Outsourcing doesn’t mean relinquishing control.
  6. Savvy clients expect creativity.
  7. Disclosure lists, should take seconds, not days.

You may have noticed that numbers 1 and 2 are the same. It was my attempt at emphasis, inspired by Tyler Durden in Fight Club. I needn’t have worried about emphasis though, because judging by the number of questions on predictive coding from the floor, litigators are indeed interested and understand the importance of using such technology in disclosure exercise. You can find out more about predictive coding on this blog.

In the five-and-a-half years that I’ve been working at Kroll Ontrack, I’ve given hundreds of demonstrations of our technology, and shown many whizz-bang features, such as visual analytics, near duplicate comparison and concept searching. But the thing that tends to light up the face of a litigator the most, is when I show them that creating a disclosure list only takes a few seconds by using the very basic feature of “Export Document List”. It is said that it’s the simple things in life that are the best, and this simple feature can save hours or even days, compared to the traditional way of dictating a document list. “I wish I had this on my last disclosure exercise,” is what I often hear in response.

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.

Kroll Ontrack leads discussion of UK litigators

On Monday Kroll Ontrack sponsored the annual conference of the Commercial Litigation Association (CLAN). The day saw commercial litigators from around England come together in the auditorium of Hogan Lovells’ London office to discuss the latest issues in commercial litigation, share knowledge and hear from subject matter experts in various fields.

The day kicked off with the Honourable Sir Terence Etherton, Chancellor of the High Court updating litigators on developments in the Chancery Division of the High Court. His keynote speech is summarised by John Hyde on the Law Society Gazette website here.

Discussions progressed to cover the latest updates and topics such as cost budgeting and litigation funding were, as expected, at the forefront of litigators’ minds.

Kroll Ontrack’s Daniel Kavan presented an interactive session with Hogan Lovells partner Neil Mirchandani, bringing litigators up to date on the latest best practices and technologies to manage their litigation cases using principles of legal project management.

Using live feedback technology, the audience was able to anonymously vote on various issues in this session. When Daniel asked litigators on the use of predictive coding in the UK, results showed that lawyers were still finding their way:

litigators

Daniel shared information about how the technology works and how it can be applied, and most litigators fed back that they would consider using the technology in their next case. Further information about Kroll Ontrack’s predictive coding technology can be found here.

The day ended with giving litigators in-house counsel’s perspective on using social media in edisclosure, followed by drinks at which lawyers were able to ask Kroll Ontrack representatives more about how predictive coding is changing the face of litigation and investigations in the UK and across Europe.

You can follow further information from Kroll Ontrack about recent trends and see reports from industry conferences this week including the Information Governance & Ediscovery Summit on our Twitter feed.

About Graham Jackson

As a Legal Consultant at Kroll Ontrack, I promote our computer forensic and ediscovery services to both corporate companies and law firms. This is to support any form of their electronic evidence needs, whether that is advising our clients to help prepare in advance of an electronic incident occurring, a real time incident such as data theft, or advise on the best course of action in dealing with post incident response to better protect against future occurrence.

The Jackson Five

Last week I had the pleasure of attending the Commercial Litigation Association Manchester Regional Seminar entitled “After the Revolution whither Napoleon?” I was there as a panelist alongside His Honour Judge Bird of the Manchester Mercantile Court.

His Honour made it clear that the Manchester Mercantile Judiciary respects the local legal practice and is willing to listen.

“We appreciate that there are areas of litigation, especially disclosure, which we have not dealt with,” he said. “We have the parameters of proportionality, but if you tell us it will take a certain amount of time, we will listen to you. We have a great deal of regard for the way solicitors do things in this city.”

Civil Procedure Rule 44.3(5) provides for five factors by which to determine the proportionality of costs. According to HHJ Bird, these have been affectionately described by some litigators as the “Jackson Five”:

(5) Costs incurred are proportionate if they bear a reasonable relationship to:
(a) the sums in issue in the proceedings;
(b) the value of any non-monetary relief in issue in the proceedings;
(c) the complexity of the litigation;
(d) any additional work generated by the conduct of the paying party; and
(e) any wider factors involved in the proceedings, such as reputation or public importance.

Judge BirdHis Honour said that judges would take seriously any new rules arising out of the implementation of the Jackson Reforms. “We now have 1.5 Mercantile judges in Manchester. Judicial resource is scarce.” He said that this necessarily impacts the way judges will look at things and that he is committed to making sure that the Jackson Reforms are effective. He went on to say , “the Judiciary has a big part to play in ensuring the Jackson Reforms work. The local practitioners have a great deal of responsibility as well.” In terms of cost budgeting, hopefully lawyers will not need to seek help of the Court most of the time: “Our hope is that costs budgets will be agreed. Once they are agreed, there is not much we can do.”

Revolutionary? Perhaps not but nevertheless fascinating. Despite not being the official opinion of the Court, it is always interesting to hear the opinions of individual judges. In addition to HHJ Bird, I would like to thank Tony Guise and Mark Beaumont of the Commercial Litigation Association for organising the event and leading the panel discussion, and Jeff Lewis, head of litigation in the Manchester office of Brabners for hosting the event and contributing his views as the President of the Manchester Law Society Council and Deputy District Judge.

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.

Limber up for the Big Data Marathon

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The Data Craze for Sports Fanatics and Lawyers

One of my colleagues has just run the Reading Half Marathon and I am expecting any minute to see his race stats published on Facebook.   Well done Rob Jones, a GPS time of 2:21:19.  Budding athletes and intrepid cyclists are downloading various  apps to their phones (like Endomondo Sports Tracker or apps.strava.com), relying on the information they gather to track distance travelled, time taken and  energy expended and using this to not only subtly show-off on social networking sites but also to plot and plan their race strategies. Of course, a positive spin-off is that the rest of us, having shared their pain and gain, feel inspired to do something similar and before you know it the data craze has turned into a sports craze and a new way of doing things. This phenomenon highlights how data can be transformed into intelligence, can inform decision making and strategy and possibly even have an unintended impact.  It got me thinking again about the influence that big data and predictive analytics is having on business and on the legal profession and how edisclosure fits into the picture.

Big data in business

Initially it was only big companies like telecommunications companies, banks and government agencies that could afford to store and analyse big data.  Thanks to advancements in hardware and databases you no longer need supercomputers to carry out complex analytics across large data sets.  Many businesses are finding that for a reasonable investment they can collect data and make it relevant to their business; by measuring consumer behaviour and using pattern detection they can respond to customer needs and market conditions and make data-driven decisions.   Supermarkets, healthcare providers, gaming companies, insurance companies and even florists are jumping on the bandwagon and tapping into the intelligence running through the big data stream and finding ways to monetise the data they hold.

But (and it’s a big but) what about law firms? 

Can lawyers, who have tended to shy away from technological innovation really harness big data to predict case outcomes and legal costs?   We know that big data can be exploited to predict the outbreak of diseases, but can it be used to predict the outcome of a litigation case?  In an interesting article by Mike Wheatley on Silicone Angle it appears that databases of legal history are being built up and algorithms are being developed to help predict case outcomes.  Apparently, companies are also developing mobile apps that predict the average legal cost of different types of cases in the US.

As we enter a new era of cost management in the UK and the need to stick to case budgets becomes more important, we will need all the help we can get to estimate costs and guess what impact variables like the number of witnesses or extent of disclosure might have, not only on costs, but also on the outcome of a case.  Of course the data that needs to be collected, analysed and correlated to make sensible predictions includes not just the key features and facts of the case itself but also the results recorded in subsequent court decisions.   When it comes to costs, law firms and e-disclosure providers are all holding a lot of valuable billing data that could be analysed to assist with cost estimating.   This might all be feasible but has not yet been done.

On the edisclosure front, data analytics has been used for some time.  We have had email analytic tools that can be used to visualize who has been communicating with whom, when and about what.  Similarly, Technology Assisted Review (TAR) (also known as Computer Assisted Review or Predictive Coding)  analyses decisions made by humans on a sub-set of documents, and then look for similar patterns in a much larger document universe to predict which documents are relevant to a case and top priority.    At this stage most of us know about TAR and some are testing the water. Here are some tips on analytics from the sports scene:

Sports analytics and the CIO: Five lessons from the sports data craze

Collect the right data to start with, both qualitatively and quantitatively.  In edisclosure this means targeting the right sources of data and is an area where experts can help.  Is it better to present a raw unfiltered set of data (to teach the system in a balanced way) or a set of results based on a carefully crafted search, or is that somewhat prejudicial. Until there are better statistics and more guidelines from real cases, the ultimate decision is likely to be a strategic one.

Start with statistically significant data.  This refers to the selection of your seed set of documents that will be reviewed by humans and used to train the prediction software.   You cannot expect the software to achieve peak performance on 1,000 documents.

Remember that the ability to contextualise data is important.  There are incalculable factors that come into play with prediction and this is where human quality control is vital.

Perhaps, as we use these predictive tools more in legal cases and share our practical experiences and results, their use will become widespread and a status symbol just like Nike + is.

About Tracey Stretton

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.

Social Media: Not a Problem?

Social Media

We think we understand social media, it’s simple, right? It’s the medium whereby we create, share and exchange information and ideas in virtual social groups. However, like many organisations, I’ve never fully understood its place in the complex areas of our lives. We constantly hear that the work/life or the public/private boundaries are blurred in today’s society and there’s no denying that social media has had its part to play. To bring this back into context, I wanted to explore the increasing importance of managing social media as evidence.

Evidence is typically found within lines of communication, so it is inevitable that we will begin to see more lawsuits and criminal proceedings focused on social networking. However, whether you’re looking to request or disclose social media content to judge its relevance in litigation, or analyse it as part of an investigation, there are potential roadblocks that are likely to get in the way.

More often than not disclosure orders include electronically stored information (ESI) within the remit of what is to be produced. Typically this includes email, office based documents, data stored on mobile devices and now we begin to see requests for data stored in the cloud and content generated via social media. So, other than the obvious challenge of having to locate the data, imagine the time and internal cost of collecting and reviewing all of your employees’ computers and mobile devices. Now imagine expanding that to your company’s social media websites and then to each individual employee!

This is not to say that social media content is difficult to access. For example, the High Court has ordered Facebook on a number of occasions to disclose details of its users to identify them to assist in defamation claims. But is social networking content deemed valuable? Most give little thought to the consequences of their posts or blogs, but this is to the wrongdoer’s detriment, as social media is not exempt from disclosure in civil or criminal proceedings and, like any evidence, can be the smoking gun needed to prosecute.

So, we can’t escape it, social media is here to stay, in work and our private lives but what advice can we give when having to handle it? Most importantly, get control. Set out clear polices and regulate where your data is; inform your employees that social media is part of YOUR data control. Make it clear from day one that social media is discloseable and constantly remind your employees that policies are in place to protect your data, and what they post on Facebook or Twitter might come back to haunt them.

About Graham Jackson

As a Legal Consultant at Kroll Ontrack, I promote our computer forensic and ediscovery services to both corporate companies and law firms. This is to support any form of their electronic evidence needs, whether that is advising our clients to help prepare in advance of an electronic incident occurring, a real time incident such as data theft, or advise on the best course of action in dealing with post incident response to better protect against future occurrence.