All posts in International Ediscovery

The Luck of the Irish…and Predictive Coding

On this St. Patrick’s Day, it’s opportune to revisit a prominent Irish judicial opinion – in fact, the first known judicial opinion in Europe to endorse predictive coding.

In the spring of 2015, Ireland embraced predictive coding in Irish Bank Resolution Corporation Ltd v. Quinn [2015] IEHC 175, a case holding that, in the discovery of large data sets, technology assisted review (TAR) using predictive coding is at least as accurate as, and probably more accurate than, the manual or linear method of identifying relevant documents.

The judgment is a great read for predictive coding pundits and a shining endorsement of the potential benefits of this technology. Specifically, the court held that:

  • The rules of court in Ireland do not require a manual document review to be carried out;
  • The evidence establishes that in discovery of large data sets, TAR using predictive coding is at least as accurate as, and probably more accurate than, the manual or linear method in identifying relevant documents;
  • As TAR combines man and machine, the process must contain appropriate checks and balances which render each stage capable of independent verification. The parties need to agree to these;
  • Provided the process has sufficient transparency, TAR using predictive coding discharges a party’s discovery obligations;
  • Predictive coding will save time and money if used to refine a data set and to limit the pool of documents to be manually reviewed. It was projected that 10% of the 680,809 documents would need to be manually reviewed after employing predictive coding, as compared to the traditional linear review estimate that required a team of 10 experienced reviewers, a nine month time frame and a cost of two million Euros; and
  • Parties should first agree to the use of predictive coding, run agreed upon keyword searches to initially refine the data set and then use predictive coding subject to agreed-upon checks and balances. Documents suggested by the software as being potentially relevant should then be reviewed manually by a human review team.

The ruling addressed major concerns expressed about predictive coding and sought to sway the skeptics. It unequivocally stated that predictive coding will save time and money. Although there is no specific reference to proportionality in Irish law, the judgment stated that cost should not be a barrier on access to justice.

The Irish opinion relied significantly on Judge Peck’s Da Silva Moore opinion, setting the predictive coding tone in the United States in 2012. A year after Ireland’s Quinn opinion, the UK would celebrate its first judicial opinion referencing predictive coding when the English High Court issued Pyrrho Investments Ltd. v. MWB Property Ltd. [2016] EWHC 256 (Ch). In that case, Master Matthews estimated that predictive coding would offer significant cost savings and that the possible disclosure of over two million documents done via traditional manual review would be disproportionate and “unreasonable.” Late in 2016, Australia joined the list of countries tackling predictive coding issues when Justice Vickery from the Supreme Court of the State of Victoria issued a key opinion in McConnell Dowell Constructors v. Santam.

As we continue through 2017, what country will be next to focus on predictive coding? Don’t miss any development; subscribe to KrolLDiscovery’s weekly email updates.

Canada: A Close-knit Ediscovery Community, Continuously Embracing New Technology

In 2017, KrolLDiscovery will be diving deep into ediscovery practices around the world. Tour with us as we explore data collection, privacy, proportionality and production practices in the Americas, EMEA and APAC.

A couple weeks ago, we travelled to the Land Down Under to learn about predictive coding practices in Australia. Our next stop: Canada, where we find that Canada is leading the way on cooperative ediscovery.

What role does ediscovery technology play in Canadian litigation matters?

Ediscovery practices in Canada closely align to analogous processes, principles and goals in the United States and the United Kingdom. For example, Canadian parties and their counsel are seeking to collect, process, review and produce electronic documents as quickly and efficiently as possible. To achieve that goal, many law firms have implemented in-house ediscovery technologies to be able to support their clients’ litigation needs. Some firms and corporations, on the other hand, also take advantage of the close-knit ediscovery community in Canada and choose to work with an ediscovery provider in a managed services capacity. Akin to the United States, many law firms are continuously re-evaluating current technologies and looking for new solutions as the cloud opens new avenues for conducting ediscovery faster and possibly cheaper without sacrificing security.

What is unique about ediscovery in Canada?

In Canada there is not a large body of ediscovery case law like in the United States or even the United Kingdom. In fact, a prominent judicial opinion referencing predictive coding or Technology Assisted Review has yet to be handed down. Instead, legal teams rely on practices and guidelines such as those found in The Sedona Canada Principles or Ontario Rules of Civil Procedure 29.1.03. Furthermore, the Ontario Ediscovery Implementation Committee (EIC) released a series of model documents to help guide litigants through the ediscovery process, including a Discovery Agreement, Preservation Agreement, Checklist for Preparing a Discovery Plan and a Proportionality Chart.

Specifically, when talking with Canadian ediscovery gurus, there is a general sense that Canada leads the global ediscovery community in terms of cooperation and proportionality, with many practitioners stating that developing ediscovery parameters with opposing counsel or regulators is simply more collaborative when compared to ediscovery matters in other jurisdictions.

What are some obstacles to ediscovery in Canada?

In some aspects of legal technology, the Canadian legal system is still playing catch-up, especially when it comes to the technically complex areas of ediscovery, trial presentation or technology in the courtroom. For example, there are factions of early-adopters embracing predictive coding in document review. However, despite the well-established benefits, the majority of legal teams are reluctant to leverage artificial intelligence to categorize documents.

Over the next few years, document review workflows will modernize as additional Canadian legal teams become more experienced with new technology such as predictive coding. This will be increasingly important in the antitrust practice area, where regulators are starting to adopt broader policies similar to U.S. antitrust protocols. The need for predictive coding will increase if parties in antitrust matters need to sift through additional volumes of documents.

How often do Canadian legal teams transfer data to the United States or Europe for ediscovery?

Canadian legal teams are continuously evaluating the needs of the specific matter and comparing risks and benefits of conducting ediscovery in Canada versus elsewhere. Many corporations in Canada have U.S. offices; so often, Canadian litigation has a U.S. based component and ediscovery documents easily cross borders. However, sometimes legal teams are reluctant to transfer data to the United States for ediscovery processing, hosting and review because of the potential impact on other pending cases or the importance of privacy in the matter. Legal teams in Canada understand that ediscovery is available in the global marketplace and should the availability of technology, ability to deliver under tight time frames or need for a large pool of document reviewers demand resources outside of Canada, parties will consider transferring subsets of data to the United States or Europe.

How does language impact ediscovery in Canada?

Many cases contain documents in both English and French; accordingly, legal teams often require document review teams comprised of bilingual Canadian lawyers fluent in English and French. This sometimes drives up the costs associated with review, placing more importance on advanced search and analytics technologies that increase document review speeds and effectiveness.

Looking to stay up to speed on global ediscovery practices? Don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.”

Australia Gets in the Predictive Coding Game

G’day, mate!

As we have said before, predictive coding (also known as Technology Assisted Review or TAR) is taking the globe by storm. First the United States, then Ireland and England, and now Australia. Ediscovery practitioners take heed: significant predictive coding developments are afoot in Australia.

(Special Note: If you are looking to stay informed on ediscovery around the world, don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.”)

Predictive Coding: From New York City to the Australian Outback

Late last year, Australia joined the list of countries tackling predictive coding issues when Justice Vickery from the Supreme Court of the State of Victoria issued a key opinion in McConnell Dowell Constructors v. Santam.

In this case, the parties faced massive costs to review 1,400,000 documents, and they could not agree on a review method. Justice Vickery appointed a Special Referee to deliver a report to the court addressing the appropriate management of discovery in the proceeding. Relying on previous TAR decisions from the U.S. and Europe, as well as the Special Referee’s recommendation to use TAR, the court approved predictive coding as an effective method of document review when “the cost of traditional discovery processes in a case such as this dictates that [such processes] are not appropriate.”

Notably, the McConnell opinion made it clear that the courts, not the parties, would have the final determination in whether predictive coding will be employed in civil proceedings in Victoria state court. Specifically, Justice Vickery held that “the Court may order discovery by technology assisted review, whether or not it is consented to by the parties” in cases where the volume of ESI is substantial and “the costs of research may not be reasonable and proportionate.”

However, McConnell was not Victorian litigators’ first exposure to TAR in the courtroom. Three months before the McConnell decision, the Supreme Court of Victoria released a Standard Operating Procedure (TEC SOP 5 [TAR]) to provide litigants with interim measures for using TAR in construction and engineering cases. On January 30, 2017, the court replaced TEC SOP 5 with Technology in Civil Litigation Practice Note SC Gen 5, opening up TAR for general use in Victoria’s commercial courts.

Consent or No Consent: That is the Predictive Coding Question

While predictive coding is gaining traction as an effective tool to tackle massive document sets, there is no bright line on whether a party can be required to use TAR. Contrary to the holding in McConnell, U.S. courts have not compelled parties to leverage TAR. In 2016, two key opinions, Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016), and In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 BL 347130 (N.D. Cal. Oct. 14, 2016), acknowledged the efficiencies associated with predictive coding, but refused to force a party to leverage the cutting-edge technology. That being said, U.S. attorneys need to be prepared that the days of insisting on manual review may one day soon be bygone. As noted by Judge Peck in Hyles, “[t]here may come a time when . . . it might be unreasonable for a party to refuse to use TAR . . . [but][w]e are not there yet.”

What’s Next for the Land Down Under?

Victoria is not the only state in Australia getting in on the ediscovery action. Courts in New South Wales abide by their state Supreme Court’s 2008 Practice Note No. SC Gen & for Use of Technology encouraging parties to consider technology to discover and inspect documents. While this practice note and other similar guidance in the Australian federal court system do not specifically reference TAR, savvy Australian practitioners know that this will likely change in the near future.

Looking to stay up to speed on global ediscovery practices? Don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.”

January 2017 Ediscovery Case Summaries

Failure to Preserve Interactive Website Data Held Insufficient to Impose Sanctions Under Rule 37(e)
FTC v. Directv, Inc., 2016 U.S. Dist. LEXIS 176873 (N.D. Cal. Dec. 21, 2016)

Jury to Decide Issue of Intent for Spoliation
Cahill v. Dart, 2016 U.S. Dist. Lexis 166831 (N.D. Ill. Dec. 2, 2016)

Australian Court Takes Predictive Coding Down Under
McConnell Dowell Constructors (Aust) Pty Ltd v. Santam Ltd & Ors (No 1),
[2016] VSC 734 (Dec. 2, 2016)

Illinois State Court Leverages Proportionality Standards in FRCP 26(b)(1) to Determine if Forensic Imaging is too Intrusive
Carlson v. Jerousek, 2016 IL App (2d) 151248 (Ill. App. Ct. 2d Dist. 2016)

Kansas Court Rejects Proportionality Arguments and Boilerplate Objections
Duffy v. Lawrence Mem. Hosp., 2016 U.S. Dist. LEXIS 176848 (D. Kan. Dec. 21, 2016)

Crossing Borders: Where Discovery and Privacy Collide

international ediscovery

Litigation teams face new challenges when an ediscovery project crosses borders – from multilingual data and unique cultural norms to unfamiliar laws, regulations and data privacy practices. In addition, the international data protection landscape is changing and U.S. businesses with global operations need to be prepared. Companies need to think carefully about the risks of transferring data across borders.

To help practitioners navigate these challenges, Kroll Ontrack synthesized information on more than seventeen countries to create a succinct, new guidebook, A Practical Guide to Cross-Border Ediscovery: Insights for U.S. Lawyers.

This guide includes practical insights into how organizations all over the world are managing a wide range of business challenges using ediscovery technology, including:

  • Case studies on cross-border litigation and FCPA investigations;
  • An “At a Glance” visual map that shows the legal system, applicable rules and ediscovery practices for key countries in the Americas, EMEA and APAC regions;
  • Short summaries from experts on the ediscovery landscape in key countries; and
  • A timeline of EU Data Privacy and Protection milestones.

Litigation, compliance demands and investigations are part of the regular course of business for U.S. lawyers. With global considerations and cross-border implications, law firms and companies now rely on mobile ediscovery technologies, in-country data centers and local expertise to empower the processing and transferring of data in a compliant and cost-effective manner. This guide is just one way that Kroll Ontrack is here to help attorneys and their counsel thrive and adapt in a changing ediscovery world. Read the new cross-border guide today.

Brexit: Through the Eyes of a US Legal Team

Brexit

The headlines are nearly ubiquitous at this point: this summer, the people of the United Kingdom voted to leave the European Union. The reasons cited for leaving are varied and complicated, with many commentators still debating what caused a niche political movement be adopted by 52% of the electorate. However, most agree that the following broad factors led to the vote to leave (aka “Brexit”):

  • A belief that the EU wields too much power over UK legislation and a subsequent desire to restore sovereignty
  • Dissatisfaction over the costs of EU membership and a feeling that the UK paid too much and received too little in return in comparison to other countries
  • Concern over EU immigration policy and a desire to have full control over UK borders
  • Anger over the UK government’s austerity regime, particularly in areas that have suffered a decline in manufacturing and industrial jobs

Technically speaking, the controversial referendum was not an official notice to the EU that the UK will leave the EU. As soon as the formal notice is given to the EU, a ticking clock begins which is set for a two year exit phase to organize the finer points of Brexit. UK Prime Minister Theresa May said she understands the need for certainty but has indicated that she does not intend to give the formal notice this year. At the earliest, Brexit could become official in 2019.

But what does this referendum mean for US businesses with global operations? Specifically, what is the full impact of Brexit on data transfers in corporate litigation and investigations? How should US in-house counsel and their law firms be preparing for future data protection and privacy changes as a result of Brexit? What will be the impact on global ediscovery practices?

Data Protection: New Horizons or Business As Usual?

The UK currently operates under the Data Protection Act 1998 (DPA), which was enacted to bring British law in line with the EU Data Protection Directive (DPD). Since Britain voted to leave the EU, it is likely that the DPA will remain unchanged at least during the Brexit transition period.

The future state of the law is partly dependent on whether or not Britain becomes part of the European Economic Area (EEA) or the European Free Trade Association. If the UK becomes part of the EEA and the EU finds the UK’s data protection safeguards to be appropriate, this would make transferring data outside of the UK easier. However, it is likely that businesses will still have to comply with the new requirements to be implemented under the forthcoming General Data Protection Regulation, when transferring data across borders to comply with legal obligations in other countries.  If Britain does not become part of the EEA, the situation is more complicated, and it is likely that an arrangement similar to the EU-US Privacy Shield would need to be agreed to. This would likely provide a safe passage for the transfer of data between the UK and other countries in Europe.

Ediscovery: Knowledge and Technology are Power

The crux of the situation is that the international data protection landscape is changing regardless of the outcome of the Brexit referendum and US businesses with global operations need to be prepared for the differences. Until the UK finalizes its data protection regime and comes to an agreement with the EU, companies need to think carefully about the risks of transferring data across UK borders. But, business does not have to come to a standstill; law firms and companies can rely on Kroll Ontrack’s mobile ediscovery solution and network of European data centers to continue processing and transferring data in Europe in a compliant and cost-effective manner.

Kroll Ontrack is here to help you and your business thrive and adapt in a changing ediscovery world. Subscribe to our email newsletters, follow us on Twitter and connect with us on LinkedIn, and read up on ediscovery all around the world.

Global Predictive Coding: Gold, Silver & Bronze

This week, athletes from around the globe will gather in Rio to compete for gold medals and present years of hard work and dedication. With the Games as a backdrop, there is no better time than to explore our own global phenomenon in ediscovery – predictive coding technology.

Recently, Kroll Ontrack’s Michele Lange and Tracy Stretton co-authored an article for Bloomberg BNA’s Digital Discovery & e-Evidence in which they discussed the way predictive coding is taking the globe by storm.

A Global Predictive Coding Case Law Primer

Taking the gold medal for the first predictive coding judicial opinion, several years ago American courts approved the use of predictive coding technology in discovery, making it widely recognized and respected. In March 2015, Ireland earned the silver medal with its approval of the use of predictive coding in the discovery process in Irish Bank Resolution Corporation Ltd. & Ors v. Quinn & Ors. In February 2016, Master Matthews helped Britain win the bronze when he issued the first British opinion, known as Pyrrho Investments Ltd. v. MWB Property Ltd., which approved the use of predictive coding in High Court proceedings, partly relying on Magistrate Judge Peck’s opinion in Da Silva Moore v. Publicis Groupe. Even more recently in May 2016, Britain had its first contested case regarding predictive coding, David Brown v. BCA Trading. These opinions are just the start of what we will see on the issue of predictive coding in years to come. Case law will continue to develop as many of the same concerns are being raised globally.

What’s Next on the Horizon?

As discussed by Lange and Stretton in their article, in the US and UK, judges will continue to interpret the nuances of parties’ predictive coding practices and it will not be long until other European and Asian countries formally join the predictive coding games. In the meantime, technology is evolving so legal professionals must stay vigilant to meet the expectations of demanding international clients when producing electronic documents in global litigations or investigations.

Antitrust Video Series: Part 1

Antitrust videos

Navigating the Seas of Global Antitrust and the Expanding Internet Frontier

Every year, the leading practitioners in antitrust law congregate in Washington, DC for more than just the cherry blossoms: they gather for the Annual Spring Meeting of the ABA Section of Antitrust Law. This year, the Spring Meeting focused on global antitrust law, highlighting that now, more than ever before, the legal antitrust professional needs to contend with the global market.

Not everyone is lucky enough to attend the Spring Meeting, so at this year’s meeting Kroll Ontrack was honored to partner with The Capitol Forum to bring you a glimpse of the exciting new topics that were discussed. Nationally renowned experts on antitrust law shared their insights and opinions with us over a dozen short, exclusive antitrust videos, which are available here for you. Part One of our video series focuses on antitrust issues involving either international jurisdictions or Internet companies, with each video each highlighting a unique facet of the current antitrust environment. Each video is organized with a short description to make is easier for you to decide which of these compelling videos to view first.

Internet Markets are Different

Scott Sher

Scott Sher

The unique follower devotion, the speed of buildup and the customer base consisting of both users and advertisers are just a few ways that Internet markets are different and are proving to be a challenge for regulatory schemes both in the United States and abroad.

Watch: Internet Monopolies featuring Scott Sher, a partner at Wilson Sonsini Goodrich & Rosati, as he discusses the unique antitrust issues facing Internet platform monopolies.

 

Diversity in Regulatory Regimes Brings Improvement Along with Headaches

William Kovacic

William Kovacic

The United States is no longer the only major jurisdiction with antitrust filing, and this has resulted in increased time and expense. Is there a unified system of regulatory filings on the horizon, and if so, should there be?

Watch: Global Antitrust Regimes featuring Professor William Kovacic of George Washington University, as he discusses the global establishment of antitrust regimes around the world, the complications and possible solutions to remedy these problems.

 

Antitrust Law Continues to Build on What Came Before

Antitrust videos

Jonathan Kanter

Antitrust law originated to prevent railroad companies from exploiting the market. Today, antitrust law is struggling to grapple with the challenges presented by Internet companies.

Watch: Mechanisms of Antitrust Law featuring Jonathan Kanter, a partner at Cadwalader, Wickersham & Taft, as he discusses the history and mechanisms of antitrust law and its emergence as a public issue.

 

 

Be sure to keep watch for next month’s arrival of Part Two of our video series, which will feature the remaining videos and focus exclusively on antitrust issues currently at play in the United States.

Discovery Implications of the EU Data Protection Regulation

RMP_D_15

A recent article by my Kroll Ontrack colleagues from across the pond, Lawrence Ryz and Tracey Stretton, details the new EU Data Protection Regulation, which aims to solidify and unify the European Union’s data protection laws. As the Regulation takes effect, American companies with operations or customers in the EU will soon find themselves having to comply witl_ryz2015h a new set of laws.

US Discovery and EU Privacy Collide

In US litigation, the fundamental principle of broad discovery conflicts with the wide-ranging privacy framework of the European Union. US civil litigation under the Federal Rules of Civil Procedure (FRCP) is premised on the idea that expansive pre-trial discovery cuts to the heart of a dispute because it allows judges to focus on the legal issues with a well-developed record. European law is founded on the idea that citizens have a broad right to privacy, with little government intervention. The strengthened Regulation prohibits the transfer of any personal data processed in the European Union to a country whose privacy laws are considered inadequate by the EU’s determination such as the United States, which poses a significant conflict with US discovery obligations.

EU Gains Sword to go with its Shield

The extraterritoriality of the new Regulation is particularly worrisome for discovery in the United States. While the European Union has strengthened its shield against data collectors with the Regulation, it has also equipped itself with a shiny new sword. When the fundamental principles of American discovery and European privacy collide in a US court judges must choose between adhering to the traditional discovery rules of the FRCP and respecting an EU litigant’s legitimate right to privacy. Furthermore, with the addition of pending changes to the EU-US Privacy Shield agreement (a replacement for the Safe Harbor data transfer agreement which was invalidated by the European Court of Justice last October), the landscape of international data privacy and data transfer laws grows more complex by the day.

Impact on Ediscovery Providers

The current Directive only applies to data controllers, but the Regulation introduces a number of detailed obligations and restrictions on data processors and is therefore likely to have a significant impact on ediscovery providers and those that engage them. In the future, penalties can be imposed on data processors that do not comply with their new responsibilities and, if they act outside of the instructions received from data controllers, they could be held to be joint controllers subject to higher standards of accountability. The new obligations include the following:

  • Maintain documentation about the processing operations under their responsibility
  • Implement appropriate security measures
  • Carry out data protection impact assessments
  • Obtain prior authorization or undertake prior consultation
  • Comply with the international data transfer requirements
  • Cooperate with a supervisory authority

For more on the new EU Data Protection Regulation and its impact, be sure to read the full article, EU Data Protection Gains a Sword to go with its Shield.

Explore the Global Expansion of Ediscovery

Ediscovery is in the midst of global change. Even for countries with legal frameworks that don’t require parties to disclose electronic documents, global ediscovery is emerging as a critical component of business and corporate governance.

Kroll Ontrack experts created a new, interactive map to help you explore global ediscovery insights. Organized by nation and theme, Ediscovery Goes Global: 2016 Trends” explores the influence of data privacy laws and regulations, cyber security concerns, advancements in computer forensics and the evolution of technology assisted review around the world.

  • Have you ever wondered what the largest emerging market in ediscovery is?
  • How, why and when does ediscovery activity increase in the Netherlands?
  • Where is the use of predictive coding expanding?
  • Ever wondered how China deals with data protection and privacy in ediscovery?
  • Coming out of significant recessions, will Spain & Italy’s use of ediscovery technologies and techniques expand?
  • How do computer forensic tools influence ediscovery in France?
  • Which APAC countries are seeing the most ediscovery growth?

Click here to explore the map and learn more about trends in the hottest emerging ediscovery markets.

 
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