The latest edition of Charles Christian’s American Legal Technology Insider has been released, bringing its usual colour to the bare recitals one gets in press releases.
Although Charles Christian and I may appear to have a fair amount in common – both English, both lawyers who write about legal technology, both willing to be acerbic where that seems justified (“edgy” is the word somebody used of me this week, whereas Charles seems to favour “grumpy and opinionated” as his own label) – we are in fact different people with different subject areas. I say this because a press release this week credited me with being the editor of the American Legal Technology Insider and the Orange Rag blog.
We each got our respective rebuttals in within seconds. Charles was concerned either that he had inadvertently agreed to sell his stable (in which case he wanted a cheque by return) or that he had unwittingly committed himself to making a speech about the minutiae of the Practice Direction to Part 31 CPR; I was equally concerned that I might find myself expected to discuss practice management systems, accounts systems or digital dictation.
The Masters Conference yesterday published the list of those in its Cabinet. New members include Shawnna Childress of LECG and me – if one is going to join a committee, then one which includes the co-founder of Women in eDiscovery and joint author of eDiscovery Plain and Simple is the one to be on.
Conference organisers are increasingly involving their participants and others in shaping the strategy and agenda for forthcoming events – I am spending a lot of of my time doing this, formally or informally and, whilst it can be hard work, I prefer this to simply poling up and speaking. At a simple level, this does at least ensure that I don’t find my subject overlapping with the one which the audience has just heard, as happened to me once. Read the rest of this entry »
FTI Consulting are presenting a webinar on structured data on Thursday 19 November at 1300 GMT. The subject is perceived by some as too difficult to talk about, but it cannot be ignored.
Elephants have provided a recurring theme throughout this blog. They are large, hard to get your arms around and difficult to describe to someone who is not familiar with them – which makes them the perfect model for the structured databases in which a very high proportion of company information resides.
E-mail, and user files like Word documents and Excel spreadsheets, spring readily to the mind of a lawyer required to disclose “documents”. Sources such as HR and financial databases tend to be overlooked, largely because they usually bear little relationship to the conventional idea of a “document”. Read the rest of this entry »
Litigation services provider Legal Inc has published the first two in a series of ten podcasts about electronic disclosure. They take the form of a dialogue between Legal Inc director Lisa Burton and me, and will between them provide a comprehensive overview of the rules, the practice direction to Part 31 CPR, and cases such as Digicel and Abela. We also discuss practical things such as preparation for case management conferences, the use of external suppliers, best practices, problem areas, global trends and pending developments. Read the rest of this entry »
Although the survey was of US companies only, the results are universal – this is not about FRCP or sanctions but about the expectation that in-house legal teams will achieve the same or more with lower budgets and fewer resources, including the spend on outside lawyers. This is happening everywhere and the conclusions are as valid in countries beyond the US. We have gone way beyond shaving down charging rates and other minor economies, and into fundamental reassessments of what is really necessary to achieve the objective.
The answers inevitably lie in a mixture of process, people and technology. The perfect model, viewed in the abstract, is that companies reserve their external lawyers for the things which they do supremely well, and keep control of as much as possible of the rest by a mixture of in-house teams and technology and by direct relationships with providers of software and services.
The primary target is to cut the cost of review by minimising the amount of data sent to the lawyers – there is much more money to be saved by reducing the lawyer hours than by trimming the charging rates. The newer generations of clustering and visualisation tools are not merely more easily understood and accurate, but deliver results which can be audited and, if necessary, re-run with different parameters. The word “repeatable” means more than being able to validate the results – if the first-pass processes are routinely done in-house, then conclusions reached last time can be re-used when similar ground has to be covered for a different case.
I have written a fair amount about this shift – lawyers must either embrace it and learn to fit into the clients’ processes, or do without the work. It will be good to have some statistical backing for what is known to be happening, and Ari Kaplan’s overview and analysis will, like the results themselves, be relevant beyond the US.
As you might infer from its name, the e-Disclosure Information Project set out with purely national ambitions. England and Wales is the only jurisdiction in the world to give the name e-Disclosure to the process of identifying, preserving, collecting and exchanging documents for litigation. If I had known that two years later I would be speaking in Brussels, Washington and Singapore within three weeks of each other, I would not have picked a name with so narrow a jurisdictional scope.
The wider I cast my net, the more it becomes clear that the jurisdictions which require discovery of documents (principally England and Wales, the US, Canada, Australia, Hong Kong and Singapore) have more similarities than differences in their approaches to the problems and the solutions raised by electronic documents. At one level this is obvious – all of these jurisdictions give pre-eminence to contemporaneous documents as the primary source of evidence, they have all seen a vast growth in volumes of evidence, and there are a limited number of ways in which court rules and procedures could develop to take account of mass documentation in adversarial proceedings in which justice is only accessible if it can be afforded. If you were to describe the problem to someone who, although suitably skilled and intelligent, had no knowledge of the developed law and procedures, you would end up with a solution whose essentials were broadly similar to those which obtain in the jurisdictions which I have named. Read the rest of this entry »
An article in Document Management News reports on the legal action being taken by the European Commission against the UK for gaps in the legislation required to comply with EU data protection laws. The investigation leading to the action was initiated because of failure to control a specific activity – BT’s trial of PHORM, which tracks web user habits and sends targeted advertising based on what the user is apparently interested in.
The UK usually complies slavishly with EU regulations, with civil servants accused of “gold-plating” the Commission’s requirements, adding refinements and extra burdens mainly as cynical job-creation exercises to keep them and their cohorts (and their cohorts’ descendants) in work. Take the dull little men at DEFRA (the Department for Environment, Food and Rural Affairs, historically a kind of dustbin for those not employable in any other government department) and give them a short EU regulation on, say, horse exports or slaughterhouses and they will (after much generously-rewarded labour), produce a law ten times as long and detailed, guaranteed to increase costs, close down businesses and put people out of work. Their own salaries and pensions, of course, are safe (if you search for “gold-plated” in Google, the results are divided between articles about British civil servants amplifying EU directives and articles about the pensions of those same civil servants). Read the rest of this entry »
What connects Father Brown’s deduction that a trusted old soldier had been a villain with Autonomy’s tracing of Jérôme Kerviel’s activities at Société Générale? Both stories involved not just hiding leaves in forests but making a forest in which to hide the leaves. Companies need to get a grip on their data.
The Times has been running a rather good series of supplements on matters relevant to business. Last week’s was on Corporate Fraud, and I and other e-Disclosure commentators were interviewed for an article called Finding a hidden leaf in a forest.
The heading is a misquotation. What I actually said in my interview was “Where does a wise man hide a leaf?”. This expression was used by Lord Justice Jacob in Nichia v Argos in his discussion about mass disclosure as opposed to the consideration of documents “with some care to decide whether they should be disclosed”. His paragraph 47 says this:
“…it is the downstream costs caused by the disclosure which so often are so substantial and so pointless. It can even be said, in cases of massive disclosure, that there is a real risk that the really important documents will get overlooked. Where does a wise man hide a leaf?” Read the rest of this entry »
A large pub gathering of most of the London litigation support industry prompts some thoughts on the state of the industry and on what makes a buyer new to the market choose one supplier rather than another
If the Larder in Clerkenwell had collapsed last night, almost the whole of the UK litigation support industry would have gone with it. Bill Onwusah of Lovells, whose idea it was, thought he was being optimistic in reckoning that 25 people might turn up in response to his invitation for “an evening of convivial conversation”. As the evening began, he revised the estimate to 45. We all lost count, but the final figure was much higher than that. What probably drew in the crowds was the rider “if you can’t manage anything convivial we will settle for an evening of the usual backbiting and sniping”. Read the rest of this entry »
My excuse, if such be needed, is that there is only one of me and that the inordinate amount of time spent on aeroplanes recently cuts into the writing time. I do not, in any event, lay claim to journalistic timeliness. Besides, as I have already noted, Patrick Burke of Guidance Software has already written up Judge Facciola’s speech and the judicial panel at the Masters Conference and now we have the PosseList’s Masters Conference wrap-up. As that makes clear, they had “various reporters” at the conference which meant they could attend sessions which ran parallel to each other. Read the rest of this entry »
I wonder what was the first legal technology development reported by Charles Christian. A new design of quill pen perhaps which, coupled with a revolutionary advance in parchment development, allowed legal clerks to write on both sides of a document at once. It might have been the outsourcing of Inner Temple deed production to monks recently made redundant by the nationalisation of the monasteries, or a steam-driven calculating machine for keeping trust accounts.
His acerbic observations on the legal technology market have been pouring out apparently for ever. His audience is legal IT professionals — the people who develop, sell, buy, implement, support and manage legal IT systems within law firms and in-house legal departments. It is unlikely that any medium-to-large law firm technology purchase in the UK has taken place without reference to the Legal Technology Insider and, more recently, the Orange Rag blog. Read the rest of this entry »
I have already written about this (see Costs penalty for non-compliance with e-disclosure obligations). It is significant at several levels: unlike Digicel it is a fairly ordinary case; it is firmly grounded in authorities about evidence and not merely about disclosure or electronic disclosure; it covers the use of disproportionately expensive lawyers as well as procedural defects; perhaps most importantly, it is a case where documentary evidence would have proved immediately what it took much oral evidence to show, possibly allowing the case to be dealt with on a summary basis. The disclosure defects did actually cost time, money and court time. Read the rest of this entry »
Unintended consequences are not necessarily unforeseeable. It was wholly predictable that the pre-issue obligations of the 1999 Civil Procedure Rules would shift the battleground to the front end of the litigation, and with obvious consequences in costs. As with the notoriously hard-fought US discovery process, if the rules give a weapon to the lawyers, then their duty is to use it. Lord Woolf seems a bit miffed, but has more to contribute to the debate than his reported attacks imply.
When Stanley Baldwin retired as Prime Minister and handed over to Neville Chamberlain, he promised “not to spit on the deck nor speak to the man at the wheel”. If Lord Woolf’s only contribution to the current debate were to come down from his lair every often and attack those who follow in his footsteps, then he would do better to stay at home. He has more to offer us than that.
Woolf recently attacked lawyers, judges and the government at a meeting of the London Solicitors Litigation Association, saying that they are all to blame for the fact that we have not seen the hoped-for reduction in litigation costs. Costs have in fact risen, putting litigation beyond the reach of all but the richest. Read the rest of this entry »
These posts sometimes acquire a life of their own in the writing especially where, as with this one, they are done in stages across a rather long day. What began as an account of my last day in Singapore turns into the observation that EDD quotations are like a cold beer on a hot day – if you really need it right now then you may have to pay more for it.
Up at 4.00am this morning [Friday], for no more obvious reason than that my internal clock was unsure what time zone it was in. It had probably caught up with Washington, but was actually now in Singapore – but not for much longer. I stayed awake throughout the second day of the conference (just as well really, since I was chairing it – how embarrassing would that be?) and went out for blameless suppers with Browning Marean, followed by early nights, respectably ignoring the fact that Singapore has a larger number of very beautiful girls than any city I have been in. It is probably that which has caught up with me (early nights, I mean, not being respectable). If you go to bed four hours earlier than usual then you wake up four hours earlier. Nothing to do with time zones. Read the rest of this entry »
To say that electronic discovery is international connotes more than the cross-border ramifications of multi-jurisdictional litigation. There is commonality in the problems, the rules and the solutions, to say nothing of the implications for law firms of new ways of working. The Masters Conference was an opportunity to explore many of them.
My ambition to report on the Masters Conference in Washington before reaching the LexisNexis e-discovery conference in Singapore was defeated by various things – only so many hours in the day for one thing, and no power sockets on the planes. As I begin writing this, it is 4.00am in Singapore a week later and the conference here has been and gone. Read the rest of this entry »
The subject of liberty came at me in three different ways on a single Sunday morning in Washington a few days ago. The top article in the Washington Post was headed “In today’s viral world, who keeps a civil tongue” and concerns what it referred to as “the rules of civil discourse”, specifically in relation to the freedom to say what you please. I went to the Arlington National Cemetery, and gazed on the thousands who lie buried there who fought for our freedom. My way back was blocked by a march demanding gay equality, and specifically the freedom of people of the same sex to marry. Read the rest of this entry »
Practice Direction No 3 of 2009 in the Supreme Court of Singapore is entitled Discovery and Inspection of Electronically Stored Information and took effect on 1 October 2009. I am off to Singapore today to take part in a conference organised by LexisNexis with the title e-Discovery & Digital Forensics.
My own subject, it will not surprise you to know, is International Parallels in e-Discovery. I aim to distil what has come out of the US-UK judicial panels which we have now done in both London and Washington and which have picked out what is best and worst from both jurisdictions. The words competence, co-operation and proportionality will inevitably feature in my speech as they do, expressly or by implication, in the new Practice Direction. Read the rest of this entry »
Browning Marean and I made two short videos at ILTA09 with Kina Kim of PivotalDiscovery. The “big reception” in my title refers to the venue rather than the reaction, but this means of conveying information is well worth doing.
Years ago, back in the late 1980s, I attended a video presentation course with my then law firm partners. The idea was not to prepare us to appear in moving pictures but to improve our general presentation skills by showing us where we went wrong when speaking in public. My own weakness, I discovered, lay not in how I looked when being filmed, but in what I did when I was merely in the background. I realised that I fiddled constantly, scratching imaginary itches, rubbing the side of my nose and generally moving about all the time. When I first stood in front of audiences, I had to remember to remove everything from my pockets to make sure that I did not jangle keys and coins whilst speaking.
I have kicked that last one, I think, but my most recent video appearance shows up a new bad habit – continuous hand gestures like a demented weather girl signing for the deaf whilst warning of stormy weather ahead. Read the rest of this entry »
You can kill an analogy with overuse, just as every cliché was once a clever new phrase. Describing e-discovery / e-Disclosure in terms of explorers and maps, however, does not become hackneyed, because exploration itself continues to excite and because it works very well as a parallel.
Each nation has its own stirring examples, and they come from all over the place. What do I get if I take the first ones which come to mind? Mallory and Tenzing climbing Everest in the year I was born. Howard Carter and Lord Carnarvon in Tutankhamen’s tomb. Sir Walter Raleigh in Virginia and South America. Scott, Shackleton and the others in the snowy wastes of Antarctica (I have a soft spot for Sir Vivian Fuchs, leader of the first overland crossing of Antarctica in 1958, if only for the newspaper headline “Vivian Fuchs off to Antarctica”). Doctor Livingstone greeted by HM Stanley in an African clearing. The use of maps necessarily implies that someone else has been there first, but is no less interesting – I have just bought a large-scale ordnance survey map of England in digital form so that I can scroll across it as we drive (as my wife drives, I should say), so interested am I in the landscape through which we pass.
If you are American, you do not need to go abroad to find stirring examples of exploration, and many of them are more or less in your own backyard. The names which come to mind are those of Lewis and Clark, whose expedition of 1804 to 1806 was the first overland exploration to the Pacific coast and back. That had a political and commercial purpose going beyond mere exploration for its own sake, since the US was in the process of undertaking the Louisiana Purchase, and neither it nor the French who were selling it, knew how big the acquisition was. We now know that it comprises about 23% of the modern US.
I am brought to this apparently random line of thought by a reference in Tom O’Connor’s recently published Top 10 EDD Tips for General Counsel, which can be found on the Law Technology News website (the second article on that page) and were the subject of Tom’s Masters Conference webcast. One which caught my eye was Point 5 which reads:
Talk to your IT department. They know how to make the map. You are Lewis and Clark, they are Sacajawea. You absolutely cannot navigate without them. Read the rest of this entry »
There is a little BlackBerry buzz in my pocket as I put my key in the door after flying sleepless overnight from Washington. Are you happy with the eleven podcasts, the message asks, and can we do a synopsis for each? She must have a trip-wire or something to tip her off that I am home. Oh, and by the way, she adds, don’t forget the article you promised. It is just as well they are asleep in Singapore, or there would be a message asking for my slides for my presentation there next week.
I have brought back four or five draft articles about Washington and the excellent Masters Conference there, ranging from one which needs only its hyperlinks added through to others which consist merely of scrappy notes on paper or in my head. They range from idle chatter about the US-UK e-discovery scene to serious stuff about sanctions and the UK practice direction. I also have a white paper to start, the blurb for a video presentation to write, a pocket full of business cards to go through, 254 e-mails to file, a bill or two to render, a couple of potential sponsors to follow up, part of a book chapter to edit, a telephone interview to give, and a bag full of clothes to get ready for the next trip to Heathrow on Monday. Read the rest of this entry »
A judgment given yesterday by His Honour Judge Simon Brown QC sitting as an Additional High Court Judge in the Birmingham Mercantile Court, will focus minds on the need to comply with the requirements of Part 31 CPR and the Practice Direction to Part 31 CPR when giving disclosure.
The case is Earles v Barclays Bank Plc in which the successful Defendant was penalised in its costs recovery after failing to observe the requirements of the disclosure rules. The judge was at pains to stress that there was no intent to conceal documents and that the omissions were the result of incorrect decisions as to the proportionality of the scope of search. The focus is not on the rules for their own sake but on the fact that if the Defendant’s disclosure had been conducted properly, then not only would much time have been saved at trial but a summary judgment application might have been successful. Read the rest of this entry »
The 2009 Masters Conference takes place in Washington on 12 and 13 October. Its title, Global Corporate Change – Navigating Discovery, Risk and Security covers only a fraction of the subjects covered in two days.
The best part for me last year, and the main reason I went, was a keynote speech by US Magistrate Judge John Facciola which I reported at length (see Leadership in Litigation). This took the debate beyond court rules and litigation technology and up into the importance of the court as a component of society. There is a direct line between competence and the efficient use of technology (on the one hand) and access to justice (on the other). Lawyers, judges, and governments which do not to make the courts accessible to everybody are not just failing their clients, the parties appearing before them or those whom they govern. Judge Facciola has the knack of making these things sound not just worthy sentiments but objectives directly related to our daily work.
What makes this job interesting is the breadth, from the minutiae of data handling to matters of state policy. There is almost no corner of the field which is not touched on in the course of the two day conference. If I pick out just the sessions from the program on the entirely random basis that I know the speakers, that is enough to give you the flavour of it. Read the rest of this entry »
I find myself in the unusual position of being the subject of a blog post rather than the writer. I was interviewed in Brussels last week by Gregory Bufithis of the Posse List which describes itself accurately as “your source for news, commentary and trends in the contract legal market”.
The venue was IQPC’s Brussels eDisclosure Conference, and the resulting post IQPCs Brussels focus: ChrisDale and the e-Disclosure Information Project serves as a better history of the e-Disclosure Information Project than I have written for myself. That matters only because it illustrates how far the electronic discovery world has moved in two years and, in particular, how views and information are being shared around the world. The problems are the same, and no longer merely in jurisdictions with a history of common law discovery. The solutions, and in particular the technology solutions, developed for civil litigation purposes, are readily applied to regulatory investigations and to internal purposes such as fraud investigation. Read the rest of this entry »
One of my aims this evening was to knock out a few words on those parts of the newly-published Report of the Scottish Civil Courts Review as relate to case management and disclosure of documents, before moving on to one of the many other topics which warrant discussion.
Two hours later, I have done no more than draft an appreciation of its broad approach to mediation, case management and the use of technology and have run out of time and space for the section on documents as evidence. It is good, thoughtful stuff, but even though I skipped the sections which do not concern me, the evening has gone. Read the rest of this entry »
I demonstrated my own commitment to information retention by mislaying my notes of the sessions at IQPC’s Information Retention and E-Disclosure Management Europe Conference in Brussels last week. As with all the best document retention policies, this means that I do not have to wade through masses of information and can focus instead only on that which is important – “important” in this context meaning what I can remember. It is reasonable to assume, perhaps, that the bits I remember are those which mattered most.
Patrick Burke and Judge Peck
We kicked off with a judicial panel moderated by Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software. Patrick is one of the relatively few in the US who “gets” the idea that, however sophisticated the US legal system may be in many respects, those who do business in a multinational context must take notice of jurisdictional differences. Rather too many assume that things are much the same over here if you shout and wave your arms about. Read the rest of this entry »
The UK High Court’s recent permission to serve an injunction via Twitter may be a first, but it has respectable antecedents and the authority of the rules.
(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.
Readers will know that the defence of our democratic rights vies for my attention with efficient case management and the use of technology in litigation. The new Supreme Court combines both of these interests.
There is a story of a former Lord Chancellor, Lord Hailsham, who wished to speak to an MP called Neil whom he had espied in the public corridors of the House of Lords, and ran after him calling his name. Hailsham was, so the story goes, in full fig of robes and garters then worn by the Lord Chancellor. What would you do, as a tourist in that august and severe building, if an authoritative-looking man so dressed ran by shouting “Neil” in a commanding voice? They did as they were told.
Hailsham left office in 1974, so the story is not that old. Much has changed since then in the House of Lords – the hereditary peers have nearly all been expelled; the Lord Chancellor (a member of the government) surrendered the right to sit as a judge; he is now not a Lord at all but a dull little man in a suit from the House of Commons, following a botched attempt to abolish the post in 2003; and now the separation of executive and judicial powers is complete with the removal of the national court of last resort to a Supreme Court on the other side of Parliament Square. Read the rest of this entry »
I got back late on Thursday from IQPC’s Information Retention and E-Disclosure Management Europe conference in Brussels. I was on three panels on the first day, attended several others, met or re-met countless people, and yet seemed in retrospect to have spent most of the time eating and drinking. You will forgive me if this post deals with impressions rather than detail.
It is hard to convey how enjoyable these conferences can be. The concentration of raw information and informed comment into two days is not incompatible with having a good time. No one goes just for the pleasurable side, but you do not need to be an information management junkie to enjoy it, whether in the session rooms, in the networking breaks between formal sessions, and in the restaurants and bars afterwards.
Chris Dale at IQPC Brussels
I will write about some of the sessions separately, and this post is just an overview to give a broad impression for those who have not yet attended one of these conferences. IQPC do them better than most, and months of serious planning goes into them. Of course, if your company has no electronic documents or if your litigation department clients foresee no need to sue, and no risk of being sued or being visited by a regulator, then an e-disclosure conference is not for you. For anyone else, it is a cost-effective way of catching up with what is going on, in pleasant surroundings and congenial company. If part of the appeal is hearing from those who do know about the subject – the legal, practical and technological aspects – another, and under-rated, aspect is the opportunity to mix with those whose knowledge, or lack of it, is no higher than your own. Read the rest of this entry »
Your heart sinks when you see a headline like that. PN 17 re-issued already? It only came into force in February. What can have turned up which warranted re-issuing it?
It transpires that this is the result of a re-numbering exercise consequent on a decision that only two forms of practice documents will be issued by the Federal Court of Australia, Practice Notes issued by the Chief Justice and local Administrative Notices issued by each District Registrar.
PN 17 is now PN CM 6 and is now entitled Electronic Technology in Litigation. My thanks to Seamus Byrne for providing the links and to Michelle Mahoney of Mallesons who, as always, was quickest to the draw when it comes to ferreting out useful pointers. Read the rest of this entry »
I do not pretend that this job is hard work in the way that trying to reach a sales target or managing a large project is hard work. It is far too enjoyable for that. It would, however, be good if all these interesting things could be spread out more evenly across the year.
Did I really agree to deliver 10,000 words for a book chapter on digital evidence by 1 October? Did that have to coincide with finishing off two white papers? Why do all the conferences end up bunched together (three conferences in three continents in three weeks starting this week in Brussels)? Are the Twitter eDiscovery lists always so full of interesting stories to follow up, or have I joined in at a particularly interesting point? I could write ten stories a day entirely from the leads on there alone – but for the book, white papers and the conferences, that is. Read the rest of this entry »
I am fond of analogies, as you know, and everything from motorway signs to Roman bridges gets pulled into service to illustrate e-disclosure points. It seems to be catching: Craig Earnshaw of FTI Technology in London came up with another when I was speaking to him a few days ago.
I often make the point that suppliers’ inevitable focus on their bigger cases tends to obscure their willingness and ability to work cost-effectively on smaller matters. They have only one home page on their website and it is not surprising that they use it to promote the higher end of their range.
It is like introducing people to opera, Craig said. You do not encourage newcomers to sit through the Ring Cycle, but introduce them more gently with Puccini.
It is a good parallel, embracing the sophistication, if that is the right word, of Wagner, the endurance needed to absorb it, the scale and the technical appreciation required. Most electronic disclosure cases are not that big or that sophisticated, and do not require of the user that he or she is deeply knowledgeable about the technology. The challenge of getting someone to attend their first opera is akin to the challenge of getting lawyers to undertake their first e-disclosure exercise. Read the rest of this entry »
Most broad ideas of the characteristics which identify people from other races and cultures contain a grain of truth as well as a dollop of unfairness. The excitable French, stoic Britons and [supply your own words here] Irish turn up in a story in the Sunday Times travel supplement.
An Aer Lingus plane is approaching Paris on a flight from London. An announcement is made in French and in English. The French get into a tremendous flap with (I embellish here somewhat) much “Zut alors!”, “Sacred blue!”, “Where is the pen of my aunt?”and all the other expressions of excitement which we associate with the Gallic nature. The Britons, meanwhile, sit calmly, with what appears to the French as a degree of sang-froid quite inappropriate to the circumstances, whatever they had heard about British stoicism.
It transpires that the cabin crew have got the tapes muddled up. English-speaking passengers were merely advised to return to their seats and fasten their safety belts. The French, however, were told to prepare for an emergency landing, to note where the emergency exits were, and to await instructions from the captain.
Stories of such mutual incomprehension and cultural stereotypes turn up from time to time in the context of foreign data collections (where the standard advice, of course, includes the suggestion that you refrain from calling your hosts’ language “foreign”). Data collection experts instructed by a US law firm went to a subsidiary company abroad to collect evidence for litigation, with the understanding that the culture of the country was that staff were immensely loyal. The collectors were puzzled to find that they were obstructed at every turn, and it took a long time to discover that whatever they had said on their arrival had been interpreted as meaning that the subsidiary’s senior management was under investigation. The employees were just being immensely loyal – exactly as the lawyers had been told they would be.
Disappointingly, there is little new in the Opinion nor (despite my initial excitement) did I really expect there to be. Proskauer Rose supplies a helpful summary and, even more usefully, a link to a translation of the Opinion
If we cannot have something new, at least it is good to have a reasonably clear statement of what the existing position is. Since neither France nor any other EU country is likely to relax its requirements (on the contrary, the general drift is in the other direction) it is as well that US courts and lawyers have the clearest possible statement of what the restrictions are and what can be done within them to meet, as far as possible, the requirements of a US court or authority. Leaving aside the detailed definitions and regulations, which you can read for yourself, the main message is that quite a lot can be achieved by, for example, anonymising data and some serious filtering. Read the rest of this entry »
The programme for the Masters Conference in Washington on 13 and 14 October is now published. It looks set to be even better than last year’s, even if you ignore my own small part in it. I will come back to that in a separate post.
More imminently, on 24 September, the Masters Conference is running a webinar given by the well-known e-discovery consultant, Tom O’Connor. Tom’s subject is Top 10 tips for Working with E-Discovery. The ten tips are the ones which Tom gives to his clients at their first meeting and should be well worth listening to.
The webinar takes place between 12.00 and 1:00 PM EDT (5:00 PM BST) and you can register for it here. The advertised context is US state and federal rules, but my experience of listening to Tom (which I do about once a fortnight) is that he has a large measure of sensible advice which travels well across borders.
In electronic disclosure as in everything else, the technology itself is unlikely to cause the problems. For the moment at least, it needs direction from human intelligence. Money spent on equipment is wasted if not supported by a brain cell or two and some project management skills.
The information boards which are spreading along Britain’s motorways are a good example of technology applied to a useful, everyday purpose. They give the ability to forewarn drivers of danger or delay ahead so that they can slow down, plan a diversion or whatever. You can now even see what the notices say from the website at TrafficEngland – I guess it is technically quite simple to repeat the information there but that makes it no less useful and it seems very clever even if, as my picture shows, half of them merely consist of nannying advice – there are few things quite so annoying as getting unsolicited advice from people you despise. Read the rest of this entry »
A director who destroyed documents in anticipation of a government investigation may not be subject to any penalty for the bare act of destruction divorced from any actual proceedings against him or his company. If that is indeed the position, there will be calls to change it. Bad cases make bad law.
I will not try and make sense for you of the story of how the Phoenix consortium acquired carmaker MG Rover for £10 in 2000, departing five years later as millionaires when the company crashed into administration. You will get the picture from the Sunday Times headline How the Phoenix gang plundered MG Rover and from the paragraph in the article which reads:
While it stops short of accusing the Phoenix directors of fraud, it paints a picture of a group of men happy to pay themselves tens of millions of pounds, much of it stashed in an offshore trust, while the carmaker ran up big losses and ultimately ran out of cash, throwing 6,000 people out of work. They ignored corporate governance guidelines, switched valuable assets out of the car company into their own names, lied to MPs about the nature of their dealings, and bawled out the few advisers who dared to question the legality — or morality — of their actions. Read the rest of this entry »
Having just published an article about whether electronic disclosure is needed in all cases, I turned to Ralph Losey’s blog to discover that he had just published an article about whether electronic discovery is needed in all cases. We do have fun on our Sundays, don’t we?
My article is called How would Bray & Gillespie play in the UK?. The references in it to the propriety of making informed decisions against e-disclosure are a mantra which I often include to make it clear that electronic discovery / disclosure is not the inevitable outcome; the target is the right decision and the proportionate decision, and such a decision cannot be made without weighing and costing all the options. Ralph Losey’s article is called Paper or Plastic? The Wisdom of Supermarket Bag Boys and the Need for Local Rules which explores, amongst other things, the extent to which the obligation to discuss e-discovery at a Rule 26(f) conference can properly be discharged by a cursory agreement to opt for paper; the alternative, plastic, is seen as being:
where you waste a ton of money paying vendors to chase down unimportant ESI and pay young lawyers to read emails about what people had for lunch, which are then produced to each other on plastic CDs.
Ralph asks “Is there a conspiracy among attorneys, officers of the court, to disobey the very rules that they have sworn to uphold?” and concludes that he is not willing to go quite that far – yet. There are others in the US who would say that, and I used almost exactly the same words, mutatis mutandis, on my first outing before British judges two years ago, with the tactful rider that judges often made themselves silent co-conspirators by not making sure that the right questions had been asked. Ralph puts the same point this way:
[Judges] approve by their silent acquiescence. Not all do, of course, a few e-discovery oriented judges speak out, and speak loudly, but they are a small minority. Most judges just look the other way.Read the rest of this entry »
Bray & Gillespie is a US eDiscovery case which has attracted attention partly because its outcome was so predictable and partly for the strong views expressed by the judge as to the conduct of those involved. What would have been the outcome if the same facts came up in a UK court?
The US courts are seeing an increasing number of cases in which the basic competence of the lawyers is called into question and, if found wanting, is punished by sanctions. These rarely involve a bare failure to understand the technology even where it is the technology which is at the heart of the case. The defect is not that the lawyers did not understand computers but that they had not read the rules and the opinions which make it clear that the electronic documents must be handled properly. This compartmentalising of the technology itself (on the one hand) and the rules relating to its use (on the other) may seem to be a distinction without a difference but it matters very much; the lawyers are hired for their legal knowledge and skills and cannot excuse themselves for failing to know the law.
If you were to say to a lawyer “Do you know how an MS SQL database works?” he might reasonably say that he does not. If, instead, your question is “Do you understand the extent of your obligations to disclose documents?”, he cannot answer “no” without admitting to professional incompetence. One of the problems in this area is that lawyers conflate the two questions and believe themselves exempt from understanding anything at all about the subject. Read the rest of this entry »
Most of what I write about, however unlikely the starting point, brings you back to electronic discovery / e-disclosure sooner or later. Even I, however, can find no such connection for what I am about to point you to. I don’t mind, and I do not think that you will either.
The first mental draft of this post extended to a survey of the range of topics which I squeeze into here ancillary to or as illustrations of e-disclosure points. I will skip them all bar one, and perhaps come back to the rest another day.
The surviving link is the use of Twitter as a source of both information and contacts. As you will have gathered, I see it as a marketing tool of immense potential as well as a significant challenge to traditional lines of communication between lawyers (or any provider of goods and services) and their clients. Leaving all that on one side today, have a look at this amazing set of photographs which juxtapose scenes from post-invasion of Normandy in 1944 and the same views today. Read the rest of this entry »
My article Twitter as a source of e-discovery information drew a comment from Nick Wade, Group Product Manager for Symantec’s Enterprise Vault – Discovery. I had focused on Twitter as merely a source of information. Nick draws attention to its value for keeping in touch with customers, and points to other resources. His comment is as follows:
Great article on the expanding role of social media in our world of Discovery news, Twitter being one of those prime avenues of faster information dissemination. I was also interested as I worked at Mallesons quite some time ago, and I still enjoy seeing my old colleagues’ names in the stream.
I also think an excellent example of Twitter’s use is to find like-minded people and have a new ability to engage in short conversations with them. Shel Israel (http://twitter.com/shelisrael) has written a fine book about this and I’m reading it now; Twitterville. I heartily recommend it, as it’s a strong follow-up to his first book co-written with Robert Scoble (Naked Conversations). And here’s one final use; a lot of companies use it to find new avenues with which to talk to their customers. We do it at Symantec and it has been very useful not only to point people at articles, releases, technotes, webcasts and so forth, but to help with problems and resolve questions – all more quickly than we could before. Companies should be in Twitterville (as Shel says).
One quick thing – I’d certainly find it useful if you provided a link to Michelle’s twitter (in this instance) [quite right - have done so]. Read the rest of this entry »
The best way to get informed about e-disclosure / ediscovery news first thing in the morning is to follow Michelle Mahoney’s overnight tweets (they are at http://twitter.com/michmahon). That is “overnight” in UK terms, since Michelle’s day starts rather earlier than ours – she is Director of Applied Legal Technology at Mallesons Stephen Jacques in Melbourne, which gives her a head start on the rest of us (or perhaps she does them at night – I’ve rather lost track after a day when I went to bed at 4am).
The last few minutes have brought one of those confusing conjunctions of events which turn up from time to time. As I started dictating this post, I received an e-mail announcing Virtual LegalTech on the 19 November at which Michelle, George Rudoy (Director of Global Practice Technology at Shearman & Sterling), Christopher Byrne (General Counsel at Wave Software) and I are due to talk about international e-discovery. I had barely finished the first sentence, when another e-mail turned up reporting that George Rudoy was following me on Twitter. Since it was George who first suggested that I used Twitter, the timing was apt. I am humbled to see that the few people whom George is following include not only Michelle Mahoney and me but the New York Rangers. Read the rest of this entry »
It is interesting to find FTI Consulting, Inc. opening a new forensic and litigation consulting practice in Paris. There is more to this, I suspect, than the economic truism that, for those who can afford it, recession is the best time to expand and to invest against the anticipated upturn.
The press release gives three reasons for opening a new office – to deliver forensic accounting and litigation consulting to FTI’s existing French and French speaking clients, to develop its international arbitration practice in Paris, and to build on its electronic discovery and forensic technology work in France. I imagine that the business case included other and more specific factors such as the increasing incursions by US courts, regulators and government bodies into non-US subsidiaries and sister companies, investigating fraudulent activity either prompted by or exposed by the recession, and increasing activity on the part of EU regulators.
E-disclosure Information Project sponsor 7Safe has joined the growing number of businesses using a blog to pass on information about what it does and what is happening in the company. It is a powerful and cheap marketing medium whatever you are promoting.
It will not surprise you to know that I believe strongly in the role of blogging as a means of conveying business information. My blog began as a backup resource to my website, a place, as I pictured it, where I could drop snippets of information without the relative formality and structure which a website requires. It speedily became my main output platform, a place where I sometimes put thousands of words each week. Although I intended it primarily as a feeder for my website, most of the traffic in fact goes the other way, with my website acting as an index to recent blog articles. I do the same for a law firm client and am about to start another. It works. Read the rest of this entry »
The mechanics of electronic disclosure are not an inherently legal function like Will writing or conveyancing. Instead of assuming that the work will always be theirs, lawyers must ask themselves why the clients should not divert it somewhere else.
There is something comforting about the certainty that you will always be needed. Doctors can always be reasonably sure of a steady flow of patients. Farmers and others engaged in food production know that people will always need to eat. It is not yet foreseeable that we will do without some form of energy piped into our homes. Fashions in clothes may change but we will always need something to wear.
Many apparent certainties, however, do not in fact last for ever. An article in last week’s paper predicts the end of fixed line telephony. A petrol station or roadside inn finds that its busy road is bypassed. I live between a canal, the latest thing in transportation when it opened in 1790, and the railway line opened in 1846 which killed canal trade overnight. Sometimes the need for a skill set drops away – a Western doctor specialising in, say, cholera, rickets and consumption came to need new areas of specialisation.
The need to handle torrents of documents has historically generated floods of work for lawyers, subsidising other areas of the firm’s practice such as the delivery of high value advice from their expensive offices as big cases brought big disclosure exercises and the opportunity to turn their assistants’ hours into large bills. What, however, if document handling flows away to others? Read the rest of this entry »
As you will have gathered from recent posts I am not a supporter of the idea that anyone working in the ediscovery / e-disclosure field must have a certificate to prove their competence. My opposition is based largely on the near-certainty that such a requirement will operate as a bar to new entrants and on the probability that any organisation purporting to offer generalised certification will speedily become a self-perpetuating oligarchy bound up in its own bureaucracy.
I exempted from this opinion the specialised training required for the proper use of highly technical applications – those hiring people who purport to know how to use such products clearly need some evidence that the employee or consultant has reached the developer’s standard of competence, and I cited Guidance Software’s EnCase as an example.
Guidance Software has now supplemented its wide range of training courses with the new EnCase® Certified eDiscovery Practitioner (EnCEP™) program which adds to the bare skills needed to use EnCase by extending out to include planning, project management and best practices in its use. It seems to me to be a logical extension of their application training that EnCase users should understand the legal and the technology context in which EnCase is to be used. This is a step in the right direction.
The current edition of the American Technology Insider is out, with Charles Christian’s report on ILTA 2009 and some spending statistics which are realistic rather than cheery in the short-term at least. There is also, as always, a succinct summary of the latest industry news.
The American Technology Insider introductory page explains what is covered in ALTi, and how you can get one delivered to your mailbox for free. There is also a section headed “For PR and marketing departments” which makes it clear that ALTi is news-driven rather than led by advertising.
The British version seems to have been around for ever. The means of publication may have changed but the format and the style remains as it began, probably with a report of the implications for lawyers of Charles Babbage’s planned Differential Engine in 1822. There is no obvious reason to change a formula which works and, more than a year after the launch of the American edition, that formula seems to go down well there as well.
Consistent with its own emphasis on short, snappy reports, the new edition of ALTi carries a quotation from Donna Payne of the Payne Group: “If you can’t demo a product in 15 minutes, you don’t have a product”. The point, I think, is not so much whether you have a product as whether you can get an audience for it. I went round the ILTA booths asking for 15 minute demos. They all seemed a bit taken aback by this, but I have to say that they all rose well to the challenge.
London’s Fifth Annual eDisclosure Forum takes place on 13 November. Run by Thomson Reuters with Sweet & Maxwell, it is generally agreed to be one of the best in the London calendar. The delegate fee is only £99 + VAT, and any firm or company which anticipates litigation involving electronic documents (and who will not?) in the coming year should be there.
It is not just the very low delegate fee which makes this conference attractive. It is the only one whose program is designed from the beginning by its co-chairs rather than by the conference organiser. I know that, because I am again one of them. An e-disclosure conference must be simultaneously sensitive to local needs and reflective of international developments and there is a relatively small pool of people able to speak with authority at both levels. Read the rest of this entry »
The first big eDiscovery conference of the autumn is IQPC’s Information Retention and E-Disclosure Management Europe conference in Brussels on 30 September and 1 October. I am going there mainly to take part in a panel organised by Guidance Software involving, amongst others, US Magistrate Judge Andrew Peck of the Southern District of New York, and Senior Master Whitaker of the Queen’s Bench Division, Royal Courts of Justice in London. We are to be joined by three European judges, Judge Abeline Dorothea Reiling, Vice-President of the Amsterdam District Court, Judge Frank Richter of the Supreme Court of Hesse, and Judge Carla Garlatti of the Court of Appeal of Venice.
Although the UK is, perforce, part of mainland Europe for many purposes, one of the (many) differences lies in our respective systems of domestic law. The UK has a common law system very much closer to the US, Australia and Canada than to France, 22 miles away from Dover. The discovery of documents is a common law concept, and one which most of Europe has largely managed to avoid until recently. Read the rest of this entry »
A second Digicel judgment does not bear on the subject of e-disclosure, but relates to alleged waiver of privilege in documents containing legal advice. A mention of it here might forestall confusion on the part of those who turn up a Digicel judgment and are puzzled to find no reference to electronic disclosure.
I offered my excuses in a recent post (A round-up to catch up) for not providing all the hyperlinks to the conferences, companies and articles referred to in the article. It can double the usefulness of an article to include easy jumps to sources referred to; it can also substantially increase the time taken to finish off an article to find all the references and deal with the mechanics of effecting the links.
For English cases, I generally use the admirable British and Irish Legal Information Institute (BAILII) because it is available to all and has a simple, fast search mechanism. Although I refer frequently to Digicel (St Lucia) v Cable & Wireless and have innumerable places of my own to look it up, I find it easier to keep the BAILII search screen open and just type “Digicel” into the search box. That is how I discovered recently that there has been a second published judgment in that case. I draw it to your attention partly for its own sake and partly to save the rest of you from picking the wrong one as I nearly did. The judgment was delivered on 17 June and concerns a waiver of privilege point which came up on the 25th day of the trial. Read the rest of this entry »
Videos about the e-discovery /e-disclosure industry can be by captains of industry or the junior trainee, can cover everything from pure technology to business commentary, and can be formal or otherwise. A set of short videos by Mike Lynch of Autonomy shows that informed informality from the top can come across well.
I am, as I have mentioned, finding some interest in the idea of using videos, and specifically videos delivered by YouTube, as a means of getting the e-disclosure / e-discovery messages across. I was attracted partly by their immediacy and accessibility, but also by the fact that they suited the times both as to their cost (which can be minimal) and their use of popular technology to convey technology messages.
The potential scope is extremely wide, ranging from technical explanations (“here is an example of conceptual search”) to putting illustrative flesh on narrative bones so that bald references to, say, forensic collection of data might be illustrated by a short film showing somebody doing just that.
Such videos do not have to be technical. Electronic discovery / disclosure involves businesses of all sizes, from established giants to hopeful start-ups. There is value in hearing from those who have made it with messages for those who hope to follow them. Read the rest of this entry »
There is a fair amount going on at the moment and a round-up note seems a good way of catching up. I will come back to some of these topics shortly with more detail than there is time for just now.
ILTA generated a fair number of words – these are interesting times and it seemed important to capture some of the points as they flew by. The certification debate matters, as does the market mood at this stage in the recession and the furthering of US-UK commonality in e-disclosure even as the political special relationship receives its coup de grace. Twitter has taken up time – not working out how to use it nor the 140 character posts themselves but the leads and links which it has pointed me to.
My conferences page is out of date, mainly because of the time taken up with pending conferences. I am involved as speaker, panellist or co-chair in IQ PC’s Brussels conference on 30 September and 1 October, in the Masters Conference in Washington on 13 and 14 October, at the LexisNexis conference in Singapore on 21 and 22 October and in the Thomson Reuters Fifth Annual e-Disclosure Forum in London on 13 November. I will say more about these and give links to them shortly. These are all opportunities to carry the e-disclosure /e-discovery message far and wide, as well as to find out what other people are doing and talking about. I must here, as elsewhere, acknowledge the support of the sponsors of the e-Disclosure Information Project whose logos appear here and without whom it would not be possible for me to go to these conferences. Read the rest of this entry »
I am new to Twitter and have yet to get to grips with all the conventions. Its primary use amongst eDiscovery people (no-one there talks of e-disclosure, alas) seems to be to refer others to interesting articles elsewhere. That seems to me to be a worthwhile function by itself, with the other networking benefits (which I am yet to get into) as a bonus. It has obvious marketing potential for the wholly legitimate reason that joining in is part of the collaborative spread of information about the subject which has the potential to benefit everyone – the referrer, the author of the source referred to, interested bystanders (which may include potential buyers), and the market generally. So far as I can see, only one participant is using its tweets as a bald advertisement, and I hope everyone else will boycott them.
If I could wish for one thing, it is that people would refrain from making multiple references to the same source in close succession. There is a distinction here between what you might call “thoughtful” articles (or less than thoughtful in the case of a recent FT one presently causing a stir) and mere press releases – the former might warrant the endorsement of several tweeters whereas the latter really only needs one reference every few hours. The point emerged in relation to the announcement of EMC’s acquisition of Kazeon. Sure, it is news of some significance, but it is hard to see who benefited from several days’ worth of tweets pointing to the press release. As I remarked elsewhere, the first 30 or so were enough to convey the message, and all the repeats simply drowned out other, and potentially more interesting, references. You need to be pretty dedicated (or have a lot of time on your hands) to pay attention to every one. Read the rest of this entry »
The UK cast itself off from the US and the rest of the common law world when we renamed “discovery” to “disclosure”. Now the whole Special Relationship has apparently died. US-UK cooperation on discovery/disclosure will survive that.
Inevitably, this column attracts comments from time to time, varying from the sophisticated to the obscene (Tom Lehrer once suggested that these two terms were interchangeable to a New York audience). One of the more thoughtful ones recently read simply as follows:
It’s bl00dy “disclosure” you dinosaur
My correspondent is, of course, correct in his succinct observation. Since 1999, Part 31 of the Civil Procedure Rules for England and Wales has referred to the identification and exchange of documents as “disclosure” where every other common law jurisdiction refers to “discovery” and, by extension, to electronic discovery or e-discovery or ediscovery (I draw attention to the difference between the presence or absence of that hyphen because, although Google treats the two terms as more or less the same, Twitter, annoyingly, sees them as different). Read the rest of this entry »
My dog Saxon has adjusted well to the fame which comes from a mention in Gabe’s Guide. I referred to him in a post a few days ago and, before I knew it, the world’s press (well, Gabe anyway) blew this up into an assertion that I become more like Saxon every day.
At one level, this is a compliment. The traditional Labrador characteristics of straightforwardness and being pleased to see people are ones I am happy to identify with, as are Saxon’s good looks. I can cope with Wikipedia’s description of the breed as “well-balanced, friendly and versatile …. adaptable to a wide range of functions…highly intelligent and capable of intense single-mindedness and focus if motivated or their interest is caught…with a good work ethic and generally good temperament”.
On the other hand, if you find me chewing bones under the piano or trying to eat all the cow-pats on the Meadow, you will no doubt suggest that retirement beckons.
One could pick up various e-discovery parallels here. Labradors are designed to retrieve what you really want, and nothing else. Bringing back the right duck out of the marsh is akin to fetching the right document set from the morass in which the clients put it. A “chain of custody” has a dual ring to it. The trail which Saxon leaves up the hall carpet is less “audit” than “into orbit” if my wife sees it.
There is another connection. The English think of Labradors as the quintessestially English dog, when in fact they come from North America. Similarly, North Americans think that they invented discovery.
There are two halves to the question “How was ILTA for you?”. One is the personal reaction. Did I learn something and see some interesting technology? Did I meet interesting people? Did I have fun? The answer to all these questions is Yes, as I expected. The more serious question concerns the state of the industry, by which I mean the lawyers who are involved in e-discovery for litigation and regulation and their clients as well as those who provide software and services to them. Let’s take the easy bit first.
I am luckier than most at ILTA. I have no responsibilities apart from talking to pleasant people about a subject in which I am interested. I have no stands to put up and man; I do not have to do any hard selling or make any buying decisions; such formal meetings as I have are a pleasure rather than a burden; I do not have projects running back in the office and anxious clients to keep contact with; I have no staff to be responsible for nor is anyone responsible for me. My sole “duty” is to see people I know and like, to meet people I do not know, and to write about some of it afterwards.
On that basis, I am easily pleased. The venue was just fine, the organisation impeccable, the sessions and booths interesting, and I was in conversation with agreeable people from arrival to departure except when I chose to sit quietly writing. A lawyer from the US, the UK, or anywhere else where documents are collected for civil proceedings could have informed him or herself at any level – those new to the subject get a gentle immersion which they can take at their own pace, whether in sessions, by going round the stands or by just talking to others; those who want a higher level of learning, technology or discussion can easily find it. Read the rest of this entry »
In the last few days, both Ralph Losey and I have invoked Plato as an expert with something to say about e-discovery. Now Thucydides joins in.
One of the pleasures of reading the Times is that there is an inexhaustible supply of people able to supply missing detail from their own recollections. You get examples like “Your otherwise excellent obituary is quite wrong in asserting that the late Buffy Henderson won his VC facing enemy fire from the right at Salerno. It came from the left. I should know – I was standing on that side of him”, and similar personal recollections of pedagogues, thespians, politicians or cricketers of yore. It keeps the newspapers’ fact-checkers on their toes and, as Pooh Bah said in The Mikado, is corroborative detail, intended to give artistic verisimilitude to an otherwise bald and uninteresting narrative.
I can generally spot a cross-reference at 1,000 paces, but I missed one when reporting a few days ago that David Cowen had said at ILTA that ” history repeats itself”. He may well have done, says the learned Jonathan Maas, but Thucydides said it first. You have got to like working in a market where people send you e-mails like that, especially when recent articles by Ralph Losey and by me have drawn on Plato for inspiration.
I haven’t got time for this, you say. There is more than enough hard news and analysis around without you dragging up dead philosophers, historians and Buffy Henderson. Maybe, but the Twitter feeds today are divided equally between the EMC / Kazeon story and the Organisation of Legal Professionals certification initiative which between them have flooded the network and lose their appeal after the first thirty or so references. Thucydides is similarly only interesting once, but I think it unlikely that anyone else will bring him into it. Read the rest of this entry »
Today’s Times reports on the launch of a new Judicial College which will give judges the opportunity to top up their skills and keep up to date with developments in the law, practice and procedure. The Lord Chief Justice, Lord Judge, introducing the new scheme, makes the point that judges work alone and that “one judge very rarely sees how another judge sets about his or her work”.
The prospectus for the new college will be published next week. It will be interesting to see if case management, and in particular the handling of electronic disclosure, will feature in the prospectus as a stand alone topic.
Disclosure is one of the biggest components in a civil litigation case. Its costs have grown in proportion to the volume of documents which exist, and out of all proportion to the sums at issue. Judicial control of electronic disclosure or, rather, the lack of control, was highlighted in a report by KPMG in October 2007. Many of those who made representations to Lord Justice Jackson’s Civil Litigation Costs Review emphasised the importance of helping the judges with this, and he so recorded in Part 8 of his Preliminary Report (see pages 381 and 382). Read the rest of this entry »
Matters of mutual incomprehension can pass unnoticed. In the context which concerns me, for example, English and American participants in e-discovery can fail to realise that one is talking about chalk and the other of cheese.
For example, American lawyers and litigation software are all geared around whether documents are “responsive” or not. That seems the obvious word to use to refer to documents which are “in” as opposed to “out”. But the importance of responsiveness follows from an aspect of US discovery which is very different to that which obtains in the UK – under the US rules, discovery is given of documents which “respond to” a request from opponents. English disclosure does not work like that – each party self-starts on its disclosure, at least for the standard disclosure which initiates the process. The concept of being “responsive” is therefore meaningless save in the broader sense of finding a “response” to one’s own search.
The gap exists not so much because one is using terminology which the other does not understand, but that neither appreciates that the terminological difference exists at all. You can miss each other in the dark like that, whether talking of discovery or international politics. Read the rest of this entry »
One of the reasons I go to American conferences is to fly the British flag as serious players in the electronic disclosure world, and to answer questions about it. The Civil Procedure Rules apply only in England and Wales. The only thing anyone in Washington wanted to talk about was Scotland.
It would be easy, staying here in the UK, to underestimate the level of American anger at the decision by Scottish Justice Minister Kenny MacAskill to release the Libyan terrorist Al-Megrahi who was convicted of playing a part in the downing of Pan Am Flight 103 in December 1988. One becomes cynical of government-level complaints designed to look populist at home and to safeguard contracts or diplomatic relations abroad. Nevertheless, it was interesting to realise what very strong feelings run amongst ordinary people in America about the decision to release Megrahi.
One of the issues is that Americans, understandably, find it hard to distinguish between the component parts of Europe, let alone the United Kingdom. They lump the UK in with Europe, for a start, believing that we are part of it; they are puzzled to discover that there is a mismatch between the political and the cultural, and that Britain does not feel part of Europe in most senses. This is part of a long tradition: Lord Raglan, commander-in-chief of the British Army in the Crimea in the 1850s, persisted in referring to the enemy as “the French”, notwithstanding that we and France had not been at war since Waterloo in 1815 and that the French were actually our allies in the Crimea. Read the rest of this entry »
An hour or so after I posted my blog entry eDiscovery certification bars new entrants arguing against the apparatus of exams and certificates for in-house staff, a new post appears headed The Critical Need for eDiscovery Certification followed closely by another post apparently based on the same press release. It is not a riposte to mine but a fortunate coincidence – I stress the word “fortunate” because, as I acknowledge in my article, this is definitely an area for debate. Chere Estrin, the author of the article, refers (as I did last week) to Socha-Gelbmann’s observations on the shortage of expertise in the market. All the more reason, says I, for opening the doors wide, leaving it to employers to choose the right people, and to direct them to external resources where they can improve their skills.
Chere Estrin takes the opposite view and points us to the Organisation of Legal Professionals which “has been formed for the purpose of providing an exacting and tough certification exam to establish core competencies”. Some of the names on the list of governors of the OLP are people I know or know of, are experts worth listening to, and are interested in the future of the profession. Read the rest of this entry »
I said in an earlier article (Recruiting one’s strength for post-recession litigation support) that I would come back to the difficult subject of e- discovery certification. The context in which it came up was that of the individual skills of litigation support professionals, and that is what this article is about. It is worth observing, however, that the assessment of e-disclosure / e-disclosure ability comes up also in other settings, including:
The competence of services providers to render the services which they advertise.
The fitness of a lawyer or firm of lawyers to practice in litigation in a world dominated by electronic documents, and of judges to manage cases.
Specific technical skills acquired by following a curriculum and taking an exam, such as those required to use Guidance Software’s EnCase products.
Training in the use of a particular application.
Whilst some or all of these link into my subject, I mention them mainly to emphasise that they are not my primary concern here. I am concerned with the question whether individuals employed within a firm or company ought to follow a course of study leading to a piece of paper which demonstrates their aptitude. I will say straight off that I am dead against this, but the arguments to the contrary are not to be lightly dismissed in a single sentence. Read the rest of this entry »
A few days after advocating the use of YouTube videos to promote new ediscovery understanding, I found myself in one with Browning Marean of DLA. Appearing soon at a cinema near you – well, on PivotalDiscovery.com anyway.
If you put a labrador, like my dog Saxon, down almost anywhere – the Moon, say – it does not take him long to find a stick or tennis ball. He does not look for them, particularly, but they just turn up. Much the same is true of me at an e- discovery conference – I wander around, confident that I will soon come across somebody I know or total strangers who seem to know me (which is one up on Saxon who does not generally get hailed by passing tennis balls).
I was walking around the opening party at ILTA 09 having, as I thought, spoken to everyone I knew, when a figure detached herself from a crowd and introduced herself. It was Kina Kim of PivotalDiscovery. com which describes itself as “the community for ediscovery and litigation professionals”. PivotalDiscovery has links to other sites and articles (including, as it turned out, one of mine), a career portal, and an index of events. It also has videos, including some on YouTube, and can be followed on Twitter. Read the rest of this entry »
I am not going to give you a full report of Richard Susskind’s talk to ILTA last week. Its basic premise is well-known to anyone interested in this area; I have written about it before; if you are interested, you would have read the book; and anyway, recording a Susskind speech is like trying to catch Niagara in a bucket. If you are not interested in what he says, then you will be dead commercially within five years anyway, whether you are in-house counsel responsible to the board, or a law firm hoping to receive instructions. This does not mean that you have to agree either with Susskind’s premises or his conclusions, but you do need to know what the arguments are.
Richard is not, it seems, much taken by my comparison between him and Private Frazer (see Richard Susskind End of Lawyers resources. Of course, (and as I acknowledged) a précis which characterises his message simply as one simply of doom ignores the fact that the title of his book The End of Lawyers? ends in a question mark. Even that chap who used to wander along Oxford Street with a banner proclaiming the imminent end of the world offered redemption to those who repented, and Susskind does the same. Redemption however, whether in business terms or in the wider spiritual context, lacks a simple road-map. We do not even have a destination, just the certainty that where we are is not the place to be. Recognising that much is a good start.
Instead of summarising the lot, I will pick one or two of the points which Richard Susskind made which seemed to me to have particular relevance in the litigation support context. Read the rest of this entry »
The Litigation Support Peer Group had a session at ILTA09 called The Future of Our Litigation Support Profession: What Lies Ahead? These are the people who actually do the work, so their reports and their views are worth having. They, and the high-level recruiter who sat with them, were optimistic, and that looks like more than mere hype.
What is interesting about discovery and electronic discovery, at least from where I sit, is that it embraces everything from state policy down to the minutiae of data handling, passing on the way some sophisticated technology, board-level strategy in law firms and their clients, and wider concepts like justice, winning and the like. It is also interesting, however, in career terms and in how firms and companies set up, structure and run the business unit which handles disclosure / discovery. Amidst all these high-flown business, technical and philosophical areas are people, in ones and twos or in teams, who are actually doing the work. Lest the reference to “business unit” may seem to imply big teams in grand departments, I see it as embracing also a single person in a small firm whose management is of projects and outsiders rather than of internal teams and who does not have to have responsibility for staff to need the tactical and strategic skills which were discussed in the session.
The Litigation Support Peer Group of ILTA is run by and for people like this. One of the many things that is interesting about the industry is that few have grown old working in it because it is itself too young (they may feel that they have aged fast, but that is a different point; Browning Marean claims to be 36, for example). Those in senior positions in litigation support have, by and large, transferred across either from the pure law side or from IT. Every firm has developed its own way of doing things, and three of those sitting on the panel are examples of those who have forged careers and taken on responsibility in what is a whole new area of practice. Read the rest of this entry »
One of my roles for sponsors is to pick up the nuances of language differences between American terminology and English English, which amount to a great deal more than remembering to avoid references to “attorney”. It is not that I claim anything special for English English (well I do, of course, but not in this context) but that if you are trying to sell solutions to English lawyers, you should do so in their language.
I was a little taken aback this morning to find a large and very smart black people carrier outside the Gaylord National Hotel with the name “Suburban” proudly emblazoned on its side. That would be the kiss of death in marketing terms in England. It is not that we don’t value the suburbs – people like to live and bring up their children in them and they hold an important place in modern British culture. Like so many other things which we value, however, we simultaneously despise them. Where Americans see (I assume) pleasant detached houses in large green plots behind low white fences, we think of rows of tacky 1930s semis or even tackier 1970s estates, where people with dubious accents and faux-posh expressions twitch their net curtains in between bouts of wife-swapping. Read the rest of this entry »
It overstates it more than a little to call this news. There are rumours of news but, as I write this on Monday, the vendor stands are still being put up and, if there are announcements being made, I am missing them [correction: FTI Technology has just launched Ringtail QuickCull Appliance for In-House E-Discovery sometime between my starting this article and reaching the end. More when I have seen it]. Mind you, you could miss the announcement of a war here. Read the rest of this entry »
It is obvious why American discovery must necessarily be bigger than discovery anywhere else. Everything else is bigger here and it is perhaps a point of honour – there would be a sense of failure if any other country had bigger discovery exercises than America.
Take the rain, for example. It was pouring down when I last left the US, after CEIC in Orlando in May. We could barely see the car in front as we drove to the airport. That same storm seemed to have reached Washington today, as Nigel Murray of Trilantic and I drove towards the Gaylord National Resort in Washington, the venue for ILTA09.
Like its twin in Dallas which was ILTA’s venue last year, this place is enormous. I spent the first hour or so exploring its vastness. It is not that there is nobody here. As its name implies, the Gaylord is a resort, and, for the weekend least, there are a lot of families here. There are two wedding parties going on – I can guess that they are separate parties because their respective guests are stunningly turned out in what appear to be themed uniforms, pale green silk for one and deep red and white for the other. Do only beautiful people go to weddings here or is there something about weddings which makes everyone look attractive? This is another of these “which came first” questions, rather like the ones which arise about the size of document populations – did the technology for document creation and storage develop to meet a need for more documents, or do we create more documents because the technology exists? Read the rest of this entry »
I will be at ILTA09 in Washington for most of the next week.
I have a few meetings and will go to some of the litigation sessions, but most of the time will pass in bumping into people and chatting. That does not sound like hard work, I know, but it is nevertheless what the job entails. I enjoy it and it tops up what I otherwise acquire by reading and e-mail contacts.
Reports will follow, not necessarily from ILTA itself (no time for that, too many people to talk to) but on my return at the end of next week.
I am a supporter of Women in eDiscovery and glad to learn from Laura Kelly of Epiq Systems that the London branch is active. They have a meeting on 17 September at the offices of Fulbright & Jaworski, 85 Fleet Street, London, EC4Y 1AE. Read the rest of this entry »
No time to précis it or comment on it, but George Socha and Tom Gelbmann have published their annual overview of the results of their annual survey on the Legal Technology News site.
If asked to pick the most important single observation from it, I would pick the shortage of expertise in the market-place, with providers, law firms and corporates reported as fighting each other for the few people who actually understand what is involved in handling electronic documents. That is important because it can only grow as a problem as we come out of recession. You can take or leave the predictions of 20% or 25% growth which some of the Socha-Gelbmann respondents apparently predict (I am prepared to take them myself) but it is certain that a generation of skilled and knowledgable people is not going to spring from nowhere.
I will give a more thoughtful assessment when I get back from ILTA in Washington. At the moment, my focus is rather more on clearing my decks before heading for the airport.
Having yesterday bracketed Richard Susskind with Private Frazer of Dad’s Army, that other well-known prophet of doom from Scotland (whilst immediately accepting that “We’re all doomed, doomed I tell ye” is an “unduly succinct and not wholly accurate précis” of Richard’s book The End of Lawyers?), I should make amends by pointing you to a list on the Legal Informatics Blog of what is a pretty impressive list of commentaries and reviews of the book and its thesis.
Richard Susskind is speaking at ILTA in Washington next week. I will be there and will report back in due course.
Guidance Software’s new EnCase Portable is interesting enough for itself. The way in which they are promoting it is even more so. The industry as a whole could make use of YouTube’s ability to point users to related material.
I happened to be with Guidance Software on the day that they announced EnCase Portable the new pocket-sized version of their forensic collection application EnCase, at a meeting of their Strategic Advisory Board at CEIC in Orlando in May. We were given a preview of the extremely neat kit — one USB drive containing EnCase and another to hold the data. The ability to put a forensic collection of data into your pocket looks like a proposition which should sell itself.
A couple of weeks earlier, I had written an article called the Untapped potential of YouTube as a promotional medium . The immediate context was the launch that week of a song called What Really Matters to Me by The Phoenix Fall, whose drummer is my son Charlie (it did very well, thank you for asking, and the second one is due out soon). The more important theme of my article, however, was that YouTube offered an instantly accessible promotional vehicle which went far beyond music videos. I raised, but quickly dismissed, the idea that Sir Rupert Jackson might launch his Preliminary Report (which was due out the next day) via a YouTube broadcast, but omitted to mention that Senior Master Whitaker once did a brief YouTube video about e-disclosure. Read the rest of this entry »
Everything was a mystery when I became an articled clerk in the late 1970s, not least that label “articled clerk”. Your articles were a period of apprenticeship, and the name also of the document which you and your principal signed by which he was bound to instruct you in the mysteries of legal practice. Of all the mysteries, the darkest was the job of the costs draftsmen. Literally darkest in fact, since these two elderly gentlemen shared a large gloomy room in the basement of the firm’s Georgian building in Gray’s Inn. My visits to them were rare, probably to deliver a file found to be missing from the huge piles which surrounded them. I never saw them anywhere else in the office. From time to time, a pile of files would return from its (always prolonged) stint in the basement, accompanied by pages of narrative and figures on stiff, strangely ruled, paper.
Firms of that size had not, until recently, had litigation partners. The client partner fronted the case, with the unglamorous parts falling to a managing clerk. The managing clerk’s office, also in the basement, had been turned into a stationery cupboard by my day, which gives some idea of his status.
In due course, the two old gentlemen disappeared and their role was contracted out. I recall taking part in only one formal dispute over the costs payable by the loser to the winner. My recollection is that my opponent was as ignorant as I was about the procedure, the principles and the components of the bill.
The costs of arguing about costs were a powerful disincentive to agree them, and it was usually possible to lump the costs in with the settlement figure or agree a rough and ready percentage of the fees actually paid by the winning party. Nothing much changes, I suspect, except that the amounts now are much larger, both absolutely and as a proportion of the sums in issue. Many cases are fought on, long after the parties have lost interest in the issues, because the sunk costs are so high. Read the rest of this entry »
Readers with long memories (I am talking ten days or so here) may recall an article Setting up dates for lawyers in which I extended an olive branch to anonymous Blogger 585 with whom I had taken issue in previous posts. 585 had written two articles about the scope for confusion caused by multiple date values stored within some files. Although I have served my time handling rows and columns of data, there is enough to cover in the wider legal and supplier market, and I rarely get into technical minutiae.
What I am interested in (and why I passed on the links which you will find in my post) is the message to lawyers and judges that, whilst there is a mass of technical detail underlying the handling of electronic documents, it is not generally necessary for the lawyer to dirty his hands with it. The lawyer does, however, need to understand what kinds of problems can arise, so that they can be anticipated, so that advice can be sought on them and so that the implications are factored into the time and cost budgets. One good reason for keeping off technical points is that there is usually more than one viewpoint, and I do not particularly want to play host to arguments about the finer points of data handling. Read the rest of this entry »
Technology companies make little use of technology to deliver their messages. Web demos may lack the personal touch of a face-to-face show, but you can reach many more people. They offer unparalleled opportunities to show off your products without the mutual commitment which a physical demo offers. The committed people will find you anyway – it is the others you need to reach.
The two web resources I talk about (from Anacomp/CaseLogistix here and Guidance Software in a separate article) are two I fell over (and the fact that I did so is perhaps interesting in its own right, since being found by people who are not looking is an obvious plus). I am sure they are not the only ones – let me know if you own, or have found, a web demonstration which is interesting as an informational medium.
I wrote recently about software demonstrations which I organised for Lord Justice Jackson (Jackson Litigation Costs Review consultation ends). Epiq Systems, Autonomy, and FTI Technology each sent along their best demonstrators and compressed their shows into 30 minutes each. The result was one of the most illuminating sessions I have ever seen.
You probably need to be a Lord Justice of Appeal with a report to write to command such a luxury. It is difficult for lawyers to organise multiple demonstrations and for suppliers to send their best men to every firm or company which expresses mild interest in their product. Not the least of the problems is that lawyers are fairly wary of expressing even mild interest. Merely putting their head above the parapet will, they fear, lead to a constant barrage of calls from an eager salesman keen to convert that mild interest into a sale, preferably a big one and during the current quarter. That dreadful question “so how soon will you be making a decision?” is the biggest deal-killer there is, and fear of it puts off those who simply know want what is out there or even just to understand the concepts. The supplier, for its part, has finite resources and an obvious wish to focus on the key targets. The salesmen himself (and it usually is a him) has an obvious personal interest in spending his time with those most likely to reach a quick decision. Read the rest of this entry »
Judge Facciola said that US judges now manage cases from their inception, including participation in the discovery process. Magistrate Judges, whose role includes trying to settle cases, are applying the same approach to the discovery disputes – trying to settle them. You cannot, he said, just sit there and wait for something to happen, but must be very proactive in dealing with matters in an anticipatory way. Judges cannot exempt themselves from the duty of competence which they expect from the lawyers, and the Federal Judicial Centre is holding two day conferences with a particular focus on discovery. Read the rest of this entry »
I am sent a fair number of press releases, although many of those who know I am interested in them seem to think that I acquire my information by some kind of intuition. Many of the PRs I do get add little to the sum of human knowledge. Many more, themselves worth following up, join a queue whose head they never reach. It is all a matter of timing. The upside to my refusal to do copy-paste journalism may be more reflective comment, but there are only seven working days in the week and a press release needs a wider context than merely its own news.
As I mentioned in a post last week (The right combination of skills at the best possible price) H5 dropped a press release into my InBox as I was writing an article about litigation lawyers dividing up cases and passing on the functions which they either do not do very well or cannot do cost effectively (or “cheaply” as the client would put it). I had in mind the marketing collateral, as well as the working benefits, of an approach which shifted the focus away from charging rates and towards placing tasks where they could be done best. The immediate context was outsourcing, for example of litigation coding and first-pass review, but I made the point that such a division of labour may be a marriage of equals rather than merely lawyers hiving off the unprofitable stuff and sending it down the food-chain. The H5 press release related to just such a marriage of equals, in this case between H5 and O’Melveny & Myers. Read the rest of this entry »
It is always helpful, when introducing something new, to be able to measure it against a familiar yardstick. When engines were first invented, their power was expressed as a multiple of the power of horses, and horses remain the comparator even now – highly sophisticated motorcars are still advertised by reference to the number of carthorses it would take to generate the same power output. We help each other to picture dimensions – height, length or area – by reference (in England at any rate) to Nelson’s Column, a London bus or a football pitch. I have heard document volumes expressed as “ESBs”, that is, the number of Empire State Buildings they would make if stacked (1 ESB = 7.57575758 Nelson’s Columns in case you wondered). We still refer to a “Gold standard”, although gold ceased to be the common medium of international exchange in 1971.
It is generally accepted by lawyers that the gold standard for accuracy of document review is reading by humans. For many lawyers, this is the standard to which they aspire and which they feel their duty requires of them. This is not the same as turning their backs on electronic review – they may be happy to conduct their review on the screen rather than on paper but are unwilling to delegate to a machine the task of deciding which documents must be reviewed and what decisions are made about them. It only when they get a case which cannot possibly be handled on this basis, that is, cannot be culled and filtered by humans, that they turn to technology. Read the rest of this entry »
It occurs to me that elephants have turned up more than once on this site as a source of parallels or illustrations. Their first appearance here was in May, when my attention was caught by some large plastic elephants in a hotel pool in Orlando (see Describing the ediscovery elephant). I concluded there that what discovery and elephants had in common that you could describe both of them to a blind person but that their impression ”though broadly accurate in outline, would inevitably be hazy on detail”.
A few days ago, comparing the UK and US approaches to e-discovery / e-disclosure in an article called Sugaring the e-disclosure pill , I said “On our side, it is the elephant in the room which no one discusses. In the US, it is just an elephant, big, ungainly, and very expensive to feed”.
Craig Ball was taken with this example, and leaped smartly in to point out that the expense of feeding elephants is only the beginning of the problem. You then have to deal with what results from feeding them. Craig says that he is “among the ranks who clean up after the elephant”. Read the rest of this entry »
If I were peddling porn or a political party, I would gauge the success of this site by the number of hits each day. I am content enough with that indicator, but what is more interesting to me are comments which suggest that people with a real interest in litigation and its management are reading my articles and finding that they strike a chord with them. It is particularly gratifying when, as last week, the comments come equally from Australia, the US and London – a reflection, I am the first to admit, of the universality of the subject matter rather than my own gloss on it.
Richard Harrison, a litigation partner at Laytons in London, was one of those who took the trouble to drop me a line last week. I value it because Richard is one of the few who combines actual practice in litigation for commercial clients with serious thought as to litigation’s place in society and as to how best to serve both the interests of justice and the clients’ needs. This cross-over between practice and thinking is vital: one of the biggest e-disclosure exercises I have been involved in, years ago, was for a Laytons partner; Richard and I exchange e-mails from time to time or meet at conferences, and he is one of those contacts who helps to keep my thinking rooted in the practicalities of life from the solicitor’s perspective. Read the rest of this entry »
The Speakers’ list includes some people worth listening to. Restricting myself only to the ones I know or have heard speak, the list includes the following: Read the rest of this entry »
It was usually fairly easy to give a date to a document in the days of paper files. In the absence of evidence to the contrary, one accepted the date typed or written on the face of document. If there was no date, the document’s place in the file was often a reasonable guide. There were usually few enough documents that one could look at the contents and draw a conclusion, at least as to roughly where in the date order list a document should appear. Since the lists themselves were hand-typed, the description could include “of approximately this date” or some such qualification to draw attention to the degree of uncertainty.
You cannot do that now – the volumes are too great for this kind of detective work and, except for scanned paper, descriptions generally consist of a file name or subject line derived automatically from the file. Besides, electronic files all carry their own dates, don’t they? Read the rest of this entry »
I am not sure how they keep the standard up, but CaseCentral has been publishing a constant stream of cartoons about e-discovery which must have done wonders for their profile. If I copied every one I liked, I would by now have run out of my allocation of storage space.
A recent one called The e-discovery black box encapsulates well the lawyer’s understanding of what goes on between asking “the system” a question and getting the answer. Charles Christian has beaten me to its republication, and it is easier to link to his copy than to make my own.
I may have brought you here under false pretences. I have no idea how big the London e-disclosure market is and I do not think that anyone else does either. I occasionally hear confident assertions suggesting that there is either much more or much less e-disclosure going on than people think but, since the starting point for these relative assessments is never specified, it is hard to deduce what “much more” or “much less” actually means. There is much less here than there is in America, but the same is true (for different reasons) of caribou and McDonald’s outlets. It is a statement of the obvious, rather than a valuable piece of market intelligence. Read the rest of this entry »
My adverse comments on a post by an e-disclosure blogger known only as 585 bring reactions from Craig Ball and from 585 himself. What level of debate gets the messages across? Politics shows us how easily we can turn people off a subject.
You can track the course of the sun by the flow of the e-mails. First you get the Australians at the end of their day. England gradually wakes up and then, in the late morning, the first messages start coming in from America’s east coast. By the end of our working day, when English e-disclosure cyberspace has only me andJonathan Maas in it, the west coast of America is in full flow. Then, before I go to bed, Australia starts again. So regular is this relationship between the sun and the e-mail traffic, that to get a message from Austin, Texas, at breakfast time makes you wonder if Phaëton had not once again taken the reins of his father’s chariot and driven the sun off course (oops, sorry, a few days’ immersion in the language of Sir Rupert Jackson’s report, as I have just had, and classical allusions start popping up everywhere).
Jan Eyck: The Fall of Phaëton
It was not Phaëton burning up the earth, but the doyen of America’s ediscovery commentators, Craig Ball, burning the candle at both ends. He had read my post Well-justified anonymity of Jackson commentator. To recap, that article was about an anonymous blogger, known only as 585, whose comments on Lord Justice Jackson’s 650 page Preliminary Report on civil litigation costs included a 625 word exposition on the proper way to disclose PSTs (Sir Rupert had apparently fallen short of the standards to be expected of a senior judge in his mention of this subject) and a disquisition on the imponderables which arise when estimating e-disclosure costs which, again, suggested to 585 that his lordship’s technical grasp was not as good as – well, as 585’s own grasp. Other articles were rather too free, to my eye, with imputations of incompetence on the part of lawyers and consultants involved in e-disclosure cases. 585’s article is called Electronic Discovery: Lord Jackson Report. Read the rest of this entry »
I have some heavyweight writing in hand at the moment involving, amongst other things, an analysis of the costs figures which Lord Justice Jackson set out in his Preliminary Report on Litigation Costs. Most of my articles come from my head, fortified by occasional references to other sources. These heavier papers are rather different, with lots of cross-referring between, in this case, the Preliminary Report, its Appendix 19 and the Civil Procedure Rules.
With that section done, something made me look back through my as-yet unfiled InBox to the week before I went on holiday. I had a vague recollection that I had not followed up a message from Laurence Eastham, editor of the Society for Computers and Law’s excellent magazine and website. I found it eventually – a recommendation that I look at an e-disclosure article on the Computers and Law site. Remorsefully, I looked it up – to find that it was all about the costs figures which Lord Justice Jackson set out in his preliminary report. I could have saved myself some research. Read the rest of this entry »
“Outsourcing” is just a label for the distribution of functions into the hands best equipped to perform them at the lowest cost. Both the functions and the relative costs change over time and need constant re-evaluation. Cost reduction involves more than the lowest rates, and the right marriage of skills does not necessarily require foreign adventures.
I wonder if it was wise of me to write about outsourcing (Do two outsourcing stories in one week presage a trend?). Every mom and pop coding shop from the Himalayas to Kanyakuman has been ringing me up – well, two of them anyway and that is two too many – trying to press their services on me. I had thought that I had seen them off last year.
I object to these calls on so many levels, none of which stems directly from the fact that they emanate from India. One is their grapeshot nature – the fact that the word “litigation” appears on my website seems to warrant picking up the phone to me, without any attempt to determine whether my role is likely to involve outsourcing coding work (it does not). Another is the lack of any attempt by the caller to distinguish his company’s services from the hundreds of others offering similar services; each of them recites some basic litigation support functions as if they had just invented the concept, and if you ask the for something, anything, which makes the caller’s company better than (or even just different from) any other, this is taken as an invitation to start from the top again with the recital of basic functions. I resent the repeated calls – either they are not bothering to record the answer I gave last time or they hope to batter me into submission; perhaps they hope to catch me out in an unguarded moment so that I inadvertently send them a big job. Above all, I reckon that if you are ringing up somebody in England, you should choose someone with a basic grasp of English to make the call. If the salesmen cannot speak English clearly, what might I expect from the technicians if I sent them a job to do? Read the rest of this entry »
A few seconds before midnight on Friday, an e-mail arrived from Abigail Pilkington, the Clerk to the Review of Civil Litigation Costs. It was a bit eerie, really. The East Wing of the Royal Courts of Justice is a cavernous, Gothic place at the best of times, like Hogwarts without the wizards. I got locked into an upper corridor one evening, many years ago (accidentally, I should say, looking for a judge to grant an injunction) and found it a disquieting experience. I pictured Abigail on her own in the gloom, conscientiously sending out acknowledgements to late submissions like mine. Closer inspection showed firstly that the e-mail was an autoreply, and secondly that it had actually been sent within a few moments of me sending my e-mail earlier that day. Perhaps the RCJ needs some wizards to look at it is e-mail system.
The message included a reminder that submissions must also be sent as hard copy. Fortunately (since the 31 July deadline was due to expire 30 seconds later), I had finished my submission with a day in hand and had noticed the requirement to send a hard copy in the nick of time. That took me back a bit – I don’t think I have sent out a hard copy of anything this century. I blew dust off the printer, and found one of those plastic spines which had fortunately survived my recent cull of office equipment which I don’t use any more. After lots of faffing about with envelopes and Sellotape, I set off to find a post office. Gordon Brown’s commitment to public services has included closing many of these essential local services, and our nearest one, some way off, is run with that surly inattentiveness which results from having a monopoly. You can’t drive to it – there is usually a queue, and the traffic wardens are the only competent and efficient representatives of our local authorities here in Oxford. So I waited for a gap in the rain, and walked to the post office, queued by the notices warning of all the services which post offices do not provide any more, had my package weighed, paid for the stamp, and trudged back to my desk. Read the rest of this entry »
My experience of trying voice recognition software again after a failed experiment some years ago, has messages for those who have not caught up with developments in litigation support software.
I have come back to voice recognition software after many years of assuming that it was an unwieldy and inaccurate method of transferring words from head to screen. I am immediately hooked and regret all those years spent crouched over a keyboard. Or do I? Is it possible that I have come back to it just at the point where it has reached a level of accuracy which is adequate for my needs, and just when those needs are greatest?
The e-disclosure context here is all those potential users of litigation support applications who dip their toes into the water once and retreat vowing never to try again. Some inadequacy, ranging from an outright system failure which lost their case through to a minor annoyance which became too tiresome to tolerate put them off, often with cries of “I told you so” ringing in their ears. Read the rest of this entry »
I am not sure what to make of an article which I have found on a blog criticising aspects ofLord Justice Jackson’s Preliminary Report on litigation costs. I have a general rule that if I do not have something pleasant to say in print, I keep my mouth shut. There are exceptions, of course, whom space does not permit me to list here but, on the whole, I reckon it is possible to comment thoughtfully and helpfully on the litigation support industry without attacking anybody, even if I have, occasionally, to grit my teeth.
I have stumbled upon this blog before, tipped off by one of my Google alerts. It seems competent, workmanlike stuff written by someone who (how shall I put this?) understands more about the technology than he does about the civil litigation context in which it is used. I have no problem with that – he knows much more than I do about file systems and data recovery – but I am put off, just a little, by the fact that the site is anonymous, with no clue as to who the author is or with what authority he writes. He calls himself 585. Do this number hold any clues as to his identity? 585 is (as I’m sure you know) the GeneID of Bardet-Biedl syndrome 4, whose symptoms I will spare you. I very much hope that this is not why he chose 585 as his alias. Perhaps it is his telephone extension. Read the rest of this entry »
My post’s heading, Woolf v Genn: the decline of civil justice, is taken from an article in the Times of 23 June 2009 which I missed. I do not altogether blame myself for not seeing it — the people who redesigned the Times website last year, turning it from a place of structured order into a kind of literary lucky dip, have recently turned their attentions to the print edition, and only random chance now brings me to the legal pages. Doubtless some of the alterations were for the better, but the designers could not resist throwing in some extra change-for-the-sake-of-change to ensure that we noticed that things were different now.
Much the same is said of the Civil Procedure Rules of 1999. An overhaul was overdue and some of the resulting amendments were undoubtedly for the better. The designers, however, felt obliged to make some showy changes, apparently for their own sake. If there was any logic in changing “discovery” to “disclosure” or in doing away with terms like “plaintiff”, “writ” or “Anton Piller” they were lost on me and on many others. I have already referred to an excellent article by HHJ Charles Harris QC published in The Times on 16 April (Sad and unsatisfactory — but not destroyed) who said this: Read the rest of this entry »
It is good news that Lord Neuberger of Abbotsbury is to be the new Master of the Rolls from 1 October (see the Times story here). The Master of the Rolls is the Head of Civil Justice and therefore the one who will be in charge of implementing the litigation costs recommendations to be made by Lord Justice Jackson at the end of this year.
His past roles include a stint as Judge in Charge of Modernisation which is a useful piece of background to bring to a civil justice system which desperately needs bringing up to date, both in its own systems and in the attitudes which the judiciary bring to court and should expect of parties.
I sat next to him at a Judicial Studies Board meeting last year when HHJ Simon Brown QC and I went with Mike Brown of Epiq Systems to talk about electronic disclosure and to show what modern litigation support systems were capable of doing. It would fair to say that not everyone in the audience got the point. Lord Neuberger certainly did.
I have never been much good at this holiday lark. I can manage the logistics of travel, and I do not suffer from any illusion that the world’s continuing rotation depends on my being at my desk. I can flit off without a qualm if the destination is a foreign conference, but disappearing voluntarily is a different matter. I blame the Protestant work ethic in which I was brought up, then on being a law firm partner just at the point in the 1980s when we moved from having drinks before lunch to missing lunch altogether, and, finally, on several years of running a business involving software support which really did depend on my being available. What I do now in fact has few geographical constraints thanks to the BlackBerry and the ubiquity of broadband. It is, I begin to realize, no bad thing to give the brain a rest from time to time.
It is never the right time, of course, but the back-to-back conjunction of an unexpected opportunity to borrow a house and two commitments (simultaneously pleasurable and inescapable) took me out for two weeks notwithstanding my backlog. I should have been in Hong Kong, speaking at the LexisNexis e-discovery conference there; they got HHJ Simon Brown QC in my place, which will not have upset them at all. I had to break off a mind-stretching correspondence with a US commentator about the implications of a particular US Opinion which filled the closing moments before I left. A white paper was part-done when I went away; I took it with me in the vain hope of finishing it off, but it will be the better for having been unopened for a fortnight. Read the rest of this entry »
You have probably heard enough from me for a bit, and I am pushing off to the country for a few days. My wife is just back from yachting in Croatia, and I see more than enough of aeroplanes and departure lounges during the rest of the year, so England suits us well.
We have been lent a cottage on an estate with a famed garden. Back properly on 23 July.
My post Cooperative hands across the sea referred to an article by Jason Baron on Ralph Losey’s e-Discovery Team blog. Jason’s article attracted some comments, two of which are worth hiving off for comment in their own right. One concerns the “information war” and is covered here. The other is about lawyer education which I will come back to.
Dr Jochen Lardner urges the importance of having the skills to conduct searches in any area of life in an information economy. He refers to “authority/credibility, censorship, technical failure, cybercrime/disinformation/information warfare”. Regular readers will know of my strongly-held view that all of these things, with the possible exception of cybercrime, are areas where UK citizens must do battle daily with their own government, both defensively (it will record everything about you and then lose the data) and offensively (MP’s expenses, ministerial cover-ups).
It now seems likely that the Labour Government will die of weakness and internal corruption before we get to the hanging-from-lamp-posts stage of civil disturbance which seemed a real possibility earlier this year. Nevertheless, we must remain alert to the potential for government misuse (whether by carelessness, incompetence or design) of the mass of private information which is collected about us, and be able to fight fire with fire – the “disinformation/information warfare” to which Dr Lardner refers is a civil war as well as one against foreign powers. Read the rest of this entry »
The outsourcing of legal functions is suddenly topical as a result of Rio Tinto’s decision to set up an outsourced legal resource in India and Pinsent Masons’ plan to have first pass litigation review done in South Africa – see Do two outsourcing stories in one week presage a trend?
Those who think that this is taking outsourcing too far, as it were, should bear in mind that the principles, the potential savings and the ability to add e-disclosure skills and resources to their litigation armoury are available much closer to home. Furthermore, they need make no upfront investment beyond a little training, and can get started tomorrow.
The first generations of litigation support applications generally required that a law firm purchased the software for in-house use and that they employed staff to administer it. The world has moved on since then, and those tools and resources and are more usually brought on board by having the documents data hosted by a third party, usually the software provider. This has many advantages, not least the fact that someone else incurs the capital outlay and takes responsibility keeping the data available 24/7. The law firm simply gets a bill for the rental of the server space, the provision of the software and any consultancy or data services which are required. The bill can be passed on to the client as a disbursement. Read the rest of this entry »
My post about the increasing exchange of ideas between the US and UK on matters of electronic discovery (Preserving the old ways, protecting the new ways) followed a spate of references in US e-discovery commentaries to what is happening in the UK. I observed that “The UK’s apparently quaint approach to disclosure conceals some workmanlike rules which deserve better use and serious consideration by others as well as ourselves”. An English audience may be interested to see some of what is said about us in the US.
The sources referred to below are amongst those to which I pay regular visits anyway, but their common element last week was that they all linked to articles of mine (and therefore turned up on my visitor statistics list). The point of the observation is not so much pride in the quality of my audience as evidence that what happens in the UK is now of interest in the US, which you would not have found a year or so ago. Read the rest of this entry »
This column, as you may have noticed, is deeply attached to the old principles of discovery of documents as a means of bringing evidence before the court. It is also a determined advocate of new ways of managing it. The US has tended to look on our rules and practice as rather quaint. As the gloss comes off the American way, however, there is a new appreciation of the British approach.
My title comes from a 1968 song by the Kinks. The Village Green Preservation Society included the lines
Preserving the old ways from being abused
Protecting the new ways for me and for you
What more can we do?
The Kinks were past their prime by 1968, with Waterloo Sunset and Sunny Afternoon behind them. It was the year in which Led Zeppelin and Deep Purple were new, and the nostalgia and sentiment of The Village Green Preservation Society were deliberately out of the mainstream, championing old virtues in a style redolent of an older (and perhaps non-existent) past. The previous year’s Summer of Love and flowers in your hair may in truth have been pretty unsophisticated concepts, but they seemed very modern compared with Ray Davies’s plea for “little shops, china cups and virginity”. Read the rest of this entry »
After leaving Oxford, I
qualified as a solicitor in 1980.
I have worked as a consultant
and developer in litigation support since 1993.
My primary focus is on the encouragement of
e-Disclosure by working with the courts and
with suppliers to achieve a joint approach.
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