Andrew Haslam of Allvision Computing has put together this useful white paper to provide an analytical framework to categorise and assess the tools and suppliers available within the litigation support and electronic data discovery (EDD) marketplace.
In broad terms there are three main stages to the litigation lifecycle:
• Capture of information.
• Preparation for trial.
• Presentation in the courtroom.
1.1 Litigation Lifecycle - Information Capture
Before the advent of Electronic Stored Information (ESI), in terms of EDD systems, the first stage of the lifecycle was primarily concerned with the scanning of pages, coding of documents and creation of Optical Character Recognition (OCR) text. Over the past 10 - 15 years this has been a stable and easily understood process, with suppliers able to provide relatively accurate estimates of the volume of paper within lever arch files and hence fairly rigorous costing estimates for the process. These estimates are based on industry normalised prices for handling the individual elements of the procedure, i.e. so many pence per document/page to disassemble files, scan pages, reassemble documents, produce OCR, conduct objective coding, etc. Although there will always be minor variations between suppliers due to different quality control procedures, software used, and plain old human errors, effectively the scanning and coding of documents has become a commodity item, with known elements of risk and risk reduction management processes.
1.2 Litigation Lifecycle - Trial Preparation
The trial preparation element of the lifecycle was where the majority of technical innovation took place from the mid 1990’s onwards. Software tools emerged which provided functionality for lawyers to handle larger volumes of documentation. They enabled users to review documents on-line to establish their relevance, privileged and trade secret statuses, and then develop the issues and themes required to support the defence or prosecution of the case. Users could carry out the exchange of disclosure information and ultimately produce the documents required for the courtroom bundle. The software in this area developed from MS-DOS roots, into Windows based applications and then technology employing the design principles which underpin the Internet, i.e. becoming web based.
Examples of this kind of software are Concordance, Summation, IntroSpect, Ringtail and iConnect. The initial focus of the development of these tools was on the requirements of this part of the lifecycle, with an emphasis on strong searching capabilities, identification of issues, key words, and themes, linkage to chronological analysis of events and very robust production capabilities. The development emphasis of these tools has changed over the past few years in response to the increasing volumes of ESI, see 1.6 below for further exploration of this proposition.
1.3 Litigation Lifecycle - Courtroom Presentation
Though quite a significant technological area within the United States, differences between the US and English legal systems, technical infrastructure and cultural acceptance, means that this is a very small element of the analytical framework. Effectively the UK does not have the “show and tell” approach to evidence favoured by the US and, with the exception of Livenote for stenography, there is not a lot of technology deployed within UK courtrooms. The one exception to this “rule” is the kind of technology deployed in the Bloody Sunday enquiry, or the Hutton enquiry into the death of Dr David Kelly. Outside of these examples, the UK courts remain worryingly technology free.
1.4 Litigation Lifecycle - Advent of ESI
Though ESI had always formed part of disclosure material, from late 2003 (particularly in the United States) there was a significant increase in both the percentage of disclosure consisting of ESI and the volume of the material itself. In reaction to this various companies developed software products to enable users to meet the challenges of conducting Electronic Data Disclosure. These applications generally comprise of two elements. The first allows for the collection and filtering of the ESI. In this process, superfluous electronic files are discarded, duplicate documents removed and techniques employed to try to weed out irrelevant material. At the end of this filtering process, the data is passed into an application that is geared to allow a large number of simultaneous reviews to occur under a robustly designed workflow, with comprehensive QC and reporting faculties. The main feature of this part of the lifecycle is the sheer volume of ESI and the impracticability of any supplier being able to provide an accurate estimate of eventual volumes and hence costings.
Examples tools here were products such as Kroll’s Electronic Data Viewer (as was) and nMatrix’s (now Epiq) initial offering. These products initially focused on the “pure” processing and review of ESI, with data being handed off into systems such as Ringtail or IntroSpect. However, they very quickly evolved into systems which also try to provide the functionality required to support the preparation part of the lifecycle. Hence Kroll’s Ontrack Inview offering, Discovery Mining’s eponymous product and Epiq’s DocuMatrix application. In response to this encroachment upon their marketplace, products such as Ringtail, IntroSpect and to some degree iConnect and Concordance’s FYI application have added “data processing” tools that offer functionality to pre-process, filter and sort data before it is loaded into their main software engine.
The main issue to be aware of when evaluating these tools is that there is, to some degree, a danger of comparing “apples with pears”. The ESI review tools come from a background of very strong review and workflow, ideal for dealing with the large volumes of ESI that are generated at the start of a project. They have only lately turned their Research and Development budgets towards the different requirements of the middle stage of the litigation lifecycle. Similarly the electronic case management vendors are moving into unfamiliar territory with their attempts to control the overwhelming flood of ESI at the start of the lifecycle.
The key point is to be aware of the different strengths of the products, balance that with the individual requirements of specific cases, tempered with the ethos and approach of the law firm and arrive at the most suitable software application for that situation.
Finally, within this area there is also the specialist sub-topic of Computer Forensics. The functionality provided here ranges from the detailed restoration of “deleted” information from a computer hard disk, through to the bulk processing of information stored on back-up tapes. The specialist organisations that operate in this area can provide a legally sound evidence trail for electronic information which may be appropriate for some cases. The majority of EDD projects will not need this kind of input, but it is an essential weapon to have in the EDD armoury.
1.5 Emergence of ESI based analytical tools
Along with the problems raised by ESI, its very nature means that it also offers the potential for significant advantages in terms of evaluating and automatically grouping information. An early player in this area was the Autonomy product which employs Artificial Intelligence techniques and a “learning” process to identify patterns and documents corresponding to a certain type, i.e. initial Privilege calls based on a knowledge base built up over months of training. This approach relies upon users supplying the key words and issues which they think are relevant before the analysis works starts.
Increasingly, the marketplace is seeing products which work by grouping similar documents together. The “similar” assessment is done by linguistic matching, i.e. documents with the same sets of words are grouped and similar groups are linked via a concept spine. These “Analytic” tools do not rely upon user preconceptions as to the relevant or important themes before the case, instead they reflect what actually exists with the electronic material. A known player in this market is the US product Attenex, which is now being challenged by the built-in analytic tools of Kroll’s Ontrack Inview, Discovery Mining’s product and Epiq’s DocuMatrix as well as direct competition from Recommind’s Axcelerate eDiscovery product.
Though this category of tools provides significant savings in terms of time and effort in cutting through the initial review phase for ESI and can provide valuable assistance in case development, they do not (at present) provide enough functionality to take a case all the way through to the end of the preparation phase. As such, they would currently be used as an adjunct to a electronic case management system.
1.6 Analytical Framework
Based on the above analysis, the following categories / functional groupings exist within the analytical framework. Because of the overlapping nature of this environment, there are some companies/products which will span more than one category, however, this approach does provide a methodology for conducting the review process required within this assignment. The groupings are:
a) Provision of scanning / coding facilities
Despite the increasing volume of ESI within disclosure material, there still is a residual element of paper. Currently, even if firms are moving towards a electronic case management environment based on an electronic approach, then there will be an ongoing need to scan, OCR and code paper files.
b) ESI collection
The issue of collecting ESI at the start of a project can be a problematic one. In a number of large cases, it may be prudent to employ a third party organisation to assist / carry out the process. This service is normally provided by vendors who also process the data, though it also part of the “one stop” approach offered by accountancy consultancy firms.
c) ESI processing / review tools
The need here spans both the in-house requirement to process information and the need to establish preferred suppliers to cope with larger volumes. The cleaned and de-duplicated data might then be returned to a law firm for loading into their selected environment, or might be reviewed in a hosted application.
d) ESI analytic tools
The selection of an analytic tool is not an essential part of establishing an EDD environment, but given the fast moving developments in this area, it is considered as an issue which should be evaluated. The key decisions in this area will probably focus on either using the “built-in” analytics modules of EDD tools (normally provided at an additional cost), or deploying a discrete tool in its own right. As ever, the particular requirements of individual cases will define the outcome.
e) Electronic Case Management applications / vendors
This is the area of greatest overlap and the one where individuals should try to understand the differences between the different software vendors as well as the similarities. Products which are excellent at the large scale processing and review demands of cases will be ideal for some large volume collection exercises with tight deadlines. Relatively smaller cases with more complex issues leading to deeper demands on the case preparation side of things will suit the products with roots in that part of the litigation lifecycle.
f) Computer Forensic capabilities
Within law firms there is normally a low level requirement for these specialised services which should be addressed by the establishment of preferred suppliers. Experience normally shows, that when these kind of services are required, they are needed on very short notice with immediate effect, i.e. we need to image a suspect PC tonight in a forensically sound manner, or we have 200 backup tapes we need to restore and examine. Once organisations with the required skill set have been identified, then a preferred supplier status should be established with selected companies.
g) Overall EDD project management / consultancy support
A number of the professional services firms operating in this area, e.g. KPMG, Deloittes, Ernst & Young, PWC offer overall project management support for larger EDD projects. However, this area is also considered as a strategic requirement as the role of litigation support within a law firm, increasingly moves from an individual who knows how to get the best price per page for scanning and coding, into the arena of central co-ordinator, orchestrating a project involving the firm’s lawyers, the client, external vendors and external parties including barristers and joint/opposing law firms.
1.7 Conclusion
The aim of this white paper is to provide an overall analytical framework so that readers can have a reference model in order to compare the relative merits of competing vendors. There is no “right” answer to the question “which product is the best?”. When law firms establish panels of preferred suppliers, the successful vendors vary according to which provide the tools and personnel which most closely fit the work type and ethos of the law firm. As in all things in life, you get what you pay for, and if in doubt, take advice from those who know what they are talking about.
© Andrew Hasla, 2008 – andrew.haslam@allvision.co.uk
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Monday, March 31
All you ever wanted to know about litigation support
by
Charles Christian
on Mon 31 Mar 2008 10:25 BST
Sunday, March 30
It's yesterday once more
by
Charles Christian
on Sun 30 Mar 2008 23:02 BST
If some of you are wondering why in the middle of Sunday afternoon you suddenly received duplicate copies of the December and/or January editions of the Legal Technology Insider newsletter, relax – it's not you or us that is going barmy. We've tracked the problem down to our former internet service providers (we dropped them at the end of January) restoring their backup tapes. It may not be best practice but there's nothing we can do to stop them.
Friday, March 28
Midgley Corner - Too much choice
by
Charles Christian
on Fri 28 Mar 2008 10:50 GMT
There's really too much choice today. We've got an American satellite TV installer who decided the simplest way to drill a hole through a wall was to shoot at it with his gun. It created a hole all right, unfortunately it also created a fatal hole in his wife who had the misfortune to be standing on the other side of the wall. Then there is the BA + BAA Heathrow Terminal 5 meltdown – nothing more needs to be said about that. However we are picking on an announcement that the creation of a new national e-crime unit was being held back because the Home Office could not find the £1.3million needed to provide its initial funding.
Now £1.3m may seem a lot of money to you and me (OK, not you, if you happen to be an equity partner in a City law firm) particularly as we are all contributing £3500 to bail out Northern Rock but it is not a lot of money in government and parliamentary terms. For example, Scottish Nationalist MP Alex Salmon ran up an expenses bill of over £130,000 last year, during which time he visited the House of Commons just 6 times. So, if he stayed in Scotland for the next 10 years (where he already has a job as the First Minister of the Scottish Parliament) that would fund the new unit. Then there is the Speaker of the House of Commons who is reportedly going to spend £100,000 in legal fees to prevent more public disclosures about MPs £23,000 second home allowances. Hmmm... 646 (the current number of MPs) x £23k = £14.8m. If MPs just bought their TVs from Currys rather than John Lewis, the saving there could probably fund the unit. And £1.3m is also considerably less than the £1.59m the Ministry of Justice (aka the Department of Constitutional Affairs, aka The Lord Chancellor's Department) spent on its rebranding exercise. I guess its all a matter of priorities. Thursday, March 27
New version of e-billing software available
by
Charles Christian
on Thu 27 Mar 2008 10:29 GMT
With e-billing now making its way on to the agendas of more and more law firms, you may be interested in this announcement made earlier this week...
eBillingHub has announced availability of its newest version, emphasizing continued expansion of its on demand library of client formats; dramatic improvements in its online dashboards and out of the box reporting functionality; and support for international requirements, such as LEDES 98Bi. Included immediately in the Hub are three new dashboards providing real-time information as to status of eBills, including average days to pay, billing progress, etc, as well as eleven new ‘out of the box’ reports that give detail on clients, vendors and overall activity. In addition this new release expands eBillingHub’s commitment to LEDES and International capabilities by supporting LEDES 98Bi and VAT calculations. Finally, an additional thirty-four client formats have been added to the eBillingHub’s on-demand library of formats allowing clients to add support for these clients in minutes. “We continue to increase the value of the eBillingHub to our customers with this release, as we have expanded our domination of this market with our partners, RainMaker Legal and Thomson Elite”, said Greg Coticchia, CEO of the eBillingHub, “This release addresses many of the challenges that financial executives have in truly knowing if they are 100% compliant with delivering electronic bills every month, let have clear and accurate visibility into the process.” “As electronic billing volume and complexity has grown, law firms have realized that it’s not simply a workload capacity issue, it’s a business process issue,” remarked Brad Blickstein of The Blickstein Group, a recent member of the LEDES Oversight Committee (LOC) board of directors and who also drove the formation of the group of the UTBMS Working Group in 2005. www.ebillinghub.com Wednesday, March 26
Still in a holiday mood?
by
Charles Christian
on Wed 26 Mar 2008 09:17 GMT
What more could you want – a website that combines a computer game with matrimonial law? Well actually it's a little shoot 'em up game that lets you play Heather Mills sloshing water over the bouffant hair of Paul McCartney's lawyer Fiona Shackleton. You can find the game here – and relax, its quite boring, you'll be backed at work in under a minute.
Tuesday, March 25
Brand on the run - a total Eclipse of the bar
by
Charles Christian
on Tue 25 Mar 2008 10:09 GMT
 We clearly started something with our picture of the nFlow freebie flask at the top of an Alpine mountain as we've now been sent a picture of a promo hat from Eclipse Legal Systems sunning itself at a bar in Skiathos, Greece. And we suspect Skiathos is where a lot of people would like to be today given that the rail service into London Liverpool Street Station has collapsed, again. (Our condolences to those people on the 5:10am from Norwich to London who, we understand, spent the best part of 4 hours stuck at Maningtree.) Just a thought – given that we are supposed to be living in a 24/7, Web 2.0 digital age – but what is the point of rail services advising passengers to check their websites before they travel when the information available on those sites is so inaccurate as to be useless? Have the muppets taken control of the asylum? Thursday, March 20
Midgley Corner - UK Gov in e-conveyancing land grab?
by
Charles Christian
on Thu 20 Mar 2008 11:01 GMT
Over the past couple of years SDLT.co.uk – a private company – has spent the best part of £150k on advertising, forged alliances with 16 case management software suppliers and processed over 100,000 SDLT submissions – making it the biggest handler of e-submissions among any of 16 TPVs (third party vendors) currently serving the English & Welsh e-conveyacing market.
So what does it get for its troubles? A Queen's Award for Enterprise or an OBE for the company's founder Archie Courage? Not exactly, in recognition of these sterling efforts (and you need to bear in mind that Stamp Duty Land Tax is one of UK Gov's nicest little earners, raising squillions each year) HM Land Registry has, via HMRC, asked the company to change its advertising strapline. The offending wording is SDLT.co.uk a future part of e-conveyancing which HMLR objects to because it might cause confusion with the HMLR's own product/service concept for the future that is also called 'e-conveyancing'. Hmm, as Archie Courage has pointed out, with remarkable restraint (we'd have told them to piss off) 'e-conveyacing' is a long established generic term* so 'no' HMLR can't claim rights to it just because they wished they'd thought of it first. After a week of weasel words, HMLR backed down. * We think we first heard the term e-conveyacing used in the UK by Neil Ewin of Solicitec (as it then was) in about 1997. Wednesday, March 19
Is hosted email cheaper than inhouse - part 2
by
Charles Christian
on Wed 19 Mar 2008 18:54 GMT
Check out the latest comments on this story (to say you the effort they are reproduced here) which sees an inhouse IT commentator put an alternative view on the calculations...
The 'savings calculator' is one of the most risible I have ever seen. For a 600 person Exchange system, it will supposedly cost me £356K over three years, vs. £50K for a hosted solution, resulting in a £306K saving. Wow, can't wait for the managing partner to come dashing through the door demanding to know why we haven't signed up yet. Hold on though, before you long suffering IT Directors and IT Managers groan in despair, I can save you! I've done a back of the fag packet Excel based on their model, but using realistic assumptions like: a) Nobody in legal IT writes stuff off over three years and then immediately bins it. You are going to run it for at least two more years, so a five year cost model is more reasonable and plenty of firms would be sweating their ageing assets beyond even this. b) I'm going to need hardware and licenses for domain controllers anyway, so it isn't a saving. c) I'm going to need Windows licenses for my PCs anyway so it isn't a saving. d) I'm going to have Outlook licenses anyway, as I need MS Office, so it isn't a saving. e) I'm going to need a backup solution anyway, there might be a slight saving on the cost of backup tapes, but that is all. f) If you can find anyone qualified to run a 600 person exchange system for 25K per annum in London then send their CV over to me at once! £40K is more realistic but still on the low side. In practice I reckon you'd need about 0.3person/year to run a 600 user Exchange system, not the 1.5 person/year they quote. g) The calculator didn't even manage to work out their own monthly per user cost and showed it as zero. I've (quite reasonably) added that back in! So I reckon the realisable saving of going hosted vs. running your own 600 person Exchange solution per year is: They say (over five years and adding in their missing costs): Own solution: £340K Hosted Solution: £354K Saving: (£14K) I say (over five years and using real world assumptions): Own solution: £130K Hosted Solution: £292K Saving: (162K) I accept there are plenty of variables that one could add in and ways to make either option more or less expensive, but using their own assumptions it would be hard to show a significant saving. Bear in mind their own model comes out at £14K more costly over five years to go hosted, and I haven't even included any costs for actually making the transition (which could be £30-50K without even trying too hard). When a more realistic model is used based on the assumptions set out above, the hosted solution comes out £162K more expensive over five years! Hardly bargain of the century, is it? There might be good reasons why you would want to go hosted (e.g. reliability, availability, focus on core business, agility, etc.) and be prepared to pay the premium, but cost savings are not the reason.
Latest Insider out now + new readers poll
by
Charles Christian
on Wed 19 Mar 2008 15:58 GMT
The latest edition of the Legal Technology Insider newsletter – issue 207 for March – has now been published. Its contents include the results of our latest readers poll on which are the most widely used versions of Microsoft Office among law firms...
With great relief we are able to report nobody is using (or at least nobody admits to using) anything earlier than Office 2000. So goodbye Office 95 and 97. We were also pleased to see the most widely used version - used by over half the participants in the survey - is Office 2003. And, a by no means shabby take-up of Office 2007. Here are the results showing the percentages of respondents using each version of Office... * Office 2000 (9.0) 19.4% * Office XP (10.0) 15.3% * Office 2003 (11.0) 52.8% * Office 2007 (12.0) 12.5% How much a day? We've had a number of readers complain about the widely divergent prices IT suppliers, systems houses and consultancies are charging for onsite training, implementation and other consultancy services, with rates varying from £350 to £2000 per day so for out next survey we are trying to discover what is the going rate - ad whether there is a regional variation between London & the S-E and the rest of the country? This survey is open both to suppliers to say what they charge and firms to say what they pay. As ever, all responses are entirely confidential. Please tick just one box in appropriate column. The survey can be accessed via the Insider website, just follow the link www.legaltechnology.com Tuesday, March 18
Is hosted email cheaper than inhouse?
by
Charles Christian
on Tue 18 Mar 2008 11:18 GMT
One of the factors that has aways held back the adoption of hosted services (whether it is on an ASP or SaaS model) has been the cost. In otherwords, despite all the operational benefits it has always seemed cheaper (and we appreciate that the true cost of ownership is frequently under-estimated) to buy a system and run it on an inhouse basis. Now e-know.net, a provider of SaaS and other hosted services, has produced a price comparison showing the difference between running an inhouse email solution and using their messagehub hosted service. (Yes, we know, the use of all this lower case text is just so 1990s.) Anyway, e-know.net reckon that over a three year period, the cost of messagehub works out to about a third of the cost of the inhouse solution. And, if your are interested, messagehub (+44(0)1952 236200) is currently offering a free try-before-you-buy option so you can assess whether hosted is a viable alternative to an inhouse email infrastructure. www.messagehub.co.uk
You can find the cost comparison here.  1 Attachments |
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