US-UK cross-fertilisation for discovery

Vince Neicho, litigation support expert at Allen & Overy in London, has an interesting article in Legal Week about the increasing amount of discussion and shared ideas between those interested in e-discovery / eDisclosure in the US and the UK.

The heading, The same, only different, and the graphic which merges the flags of the two countries, presage the points which Vince makes. There are a mass of differences between the way the courts of the two countries approach the obligations which the parties have to disclose documents. In many ways, the perception amongst UK lawyers and judges that the whole business is just very expensive stems from these outward differences.

What the article does, however, is to emphasise that there are also core similarities, and that these are likely to increase as each side learns more about the rules and practices in the others’ jurisdiction.

Autonomy integrates workflow into iManage Worksite

Those whose involvement with information management comes at the discovery end of the process have come to take for granted the immense sophistication of some of the applications available at this end of the EDRM (Electronic Discovery Reference Model). One of the reasons why this is necessary is that the clients have done little to sort, filter and classify their documents as they went along.

The lawyers can compound this potential for confusion at the inception of a matter. Things happen in a rush, with forms to complete, accounts to open, standard documents to send out and track and various forms of checks to undertake – does this client or its matter raise client conflicts? Does taking on the work conflict with some ethical position which the firm (or another big client) has taken? All this has to happen at the same time as the client is sending in the first batch of documents about the matter with the breathless request to know if they will win or lose. Some of the letters and other documents and transactions require approvals, with a corresponding need to route requests and relay the reaction.

Do two outsourcing stories in one week presage a trend?

The decision by Rio Tinto to send some legal work to India comes at the same time as Pinsent Masons announces its plans to send first-pass litigation review work to South Africa. Once you strip out the protectionist reactions of those who do this work now and those who make money from their work, you see the next obvious step towards globalization, and opportunities for those – lawyers and their firms – who ride the wave.

I picture Professor Richard Susskind as having a big wall chart on which he traces the progress of his various predictions over the years. Perhaps they are colour-coded according to the amount of derision they faced as he rolled them out – bright red, for example, for the idea that lawyers might communicate by e-mail or put legal information up on publicly-available web sites. I see him putting a big red tick beside them as the world catches up, or perhaps – since the adoption tends to be incremental – a graph showing the rate of adoption. This would almost always start with a gradually-rising line and then shoot upwards as the herd follows the early-adopters.

Two stories last week will have added to one of his graph lines – the idea that lawyers will distribute some of their work outside the firm to places where it can be done more cheaply. On 19 June, the Times reported (Rio Tinto’s legal switch puts pressure on London) that Rio Tinto has hired a team of lawyers in India to try to reduce its annual £60 million legal bill by 20 per cent, recruiting 12 lawyers in Delhi to work for it on tasks such as reviewing documents and drafting contracts. On 22 June, The Lawyer wrote about Pinsent Masons’ decision to outsource some of its litigation work to South Africa, becoming, the Lawyer said, the first UK firm to offshore the work of qualified lawyers (Pinsents – first firm to offshore work of qualified UK lawyers)

Australia at the centre of the discovery world

The default map of the world shows Britain in the middle and near the top, with Alaska at top left and New Zealand at bottom right. Perhaps that is because Europe invented the Greenwich Meridian; maybe it is a legacy of Empire or a conspiracy of cartographers (the phrase is Tom Stoppard’s);  possibly the maps in Australia are centred on Canberra, with Iceland and Cape Horn as their left and right extremes. By any measure, anywhere else is a long way from Australia. Its influence in the world of electronic discovery is disproportionately large.

Equivio appeal to corporate IT

Back in March, I wrote about an interview which I had conducted with Warwick Sharp, Vice President of Marketing and Business Development at Equivio (see Podcast summarisises Equivio benefits). A transcript of the interview was first published in Enterprise Technology Management (ETM), Q1 2009. ETM is produced by Informed Market Intelligence (IMI), London.

IMI’s primary audience is described thus:

Information technology has evolved to be the cornerstone of all business activity. Business strategy and technology solutions have become so intertwined that IT is now the driving force behind business success or downfall.

As a result of this convergence, a new type of IT executive has emerged: one who spends the majority of his or her time on business strategy, working hand-in-hand with business colleagues to not only support but actually drive business success.

Today’s global companies need to be strategic thinkers, able to move beyond reactive and even responsive behaviour. They need to be predictive, setting the technology agenda based on their understanding of where business and technology are moving. They need to ensure that all technology investments are driven by business strategy, and that IT is being used to ensure agility and innovation throughout the organization.

My own primary audience is further along the chain, the lawyers and judges who are responsible for handling electronic discovery for litigation, regulatory and related purposes, and the suppliers who serve them. There is, however, a close relationship between the two audiences – it is the corporate IT executives who own and control the data which ends up as the raw material for disclosure. There are two ways in which we can influence the latter to be more strategic and predictive – by anticipating the company’s disclosure requirements in their information management strategies, and by working more closely with the company’s lawyers both to be ready for any disclosure eventuality and when an actual requirement arises.

Sedona Conference dialogue on cross-border discovery in Barcelona

As I have noted elsewhere, I had my own cross-border problems in getting to the Sedona Conference International Programme on Cross-Border eDiscovery, eDisclosure and Data Privacy Conflicts in Barcelona on 10-11 June. I was chairing an edisclosure conference in London the previous day and due in Sydney at the week-end and, in consequence, arrived late in Barcelona and left as soon as the main business ended.

I am spared my usual faithful accounts of the sessions by Sedona’s sensible rule that “what happens at Sedona stays at Sedona”. My mission generally is to get as wide an audience as possible for what is said at conferences, but I am more than happy to submit to the restriction in this context, partly because there is more than enough else to write up and partly because the density of the dialogue (and Sedona is expressly committed to dialogue rather than debate) is such that you would need a book to do justice to its proceedings.

It seems sensible instead to juxtapose some stereotypes against the reality in an attempt to show those new to the subject what the broad picture is. This matters because cross-border issues inevitably involve cross-cultural matters as well as conflicts of laws. The best and most topical summary of the issues is Working Document 1/2009 on pre-trial discovery for cross border civil litigation prepared by a Working Party set up under Article 29 of EU Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Its introduction recites the problem thus:

Ark Group e-Disclosure Conference 2009

You can generate a lot of notes in six conference days in three countries in nine days and have little time to transcribe them. I am quite good at actually recording what people say, less so at the small but telling details like headings and page-numbering. I can generally rely on my memory to fill the gaps in my notes (and the bits I cannot read) but that is a tall order when information has rolled at me continuously for days like infantry at the Somme. Ark Group’s e-disclosure conference of the beginning of last week seems a distant memory on a cold, wet dawn in Sydney ten days later when I started writing it all up, still more in the dark aeroplane cabin surrounded by snoring travellers on the way home when I finished it off. There was lots of good stuff said at the conference, but I doubt you would read a verbatim account even if I could set it down. What follows is a summary.

The chairman on Day 1 was Lee Gluyas of DLA Piper UK LLP who, as in previous years, was well up to the challenge of keeping speakers to time. Lee’s opening comments identified a positive shift over the time he had been filling this role, a greater awareness of the issues and the need to grapple with them.

Jackson conference challenge to litigation support providers

Lord Justice Jackson laid down a challenge to litigation support providers at the Ark Group e-Disclosure 2009 conference in London last week. They must, he said, find a way to bring down the cost of e-disclosure; if they cannot, then the basis of disclosure will have to be changed. Other jurisdictions provide a disputes forum which does not require the parties to undertake the vast exercises which are needed for compliance with the existing disclosure regime. The implication was that the old and treasured principle that all the evidence must be rigorously examined is threatened by the brute fact that the cost of conducting that examination is too high.

There is much more to say about this than can be fitted into an account of a two day conference, so I will settle for a bullet point summary of the other elements which contribute more to the costs than most suppliers do:

In travelling as in most services delivery, it is the little things which matter

If this piece has any e-discovery parallels at all, they are to do with project management and the contingencies of time and cost which turn up in any project. It is also about the apparently trivial things which flavour a user’s experience. I am attending three conferences in sequence, and will cover them in various posts. This one is mainly about the glue holding the conferences together – the journeys in between. Like any other form of service delivery, the small things make a difference.

The primary components in travelling work quite well really. Take railways: the concept of a set of parallel metal tracks, unimpeded by third parties, should be unbeatable as a service, with no major changes in principle since Brunel’s day. It is the people running it who f*** it up. Or flying: the idea that a large metal box can take to the air and put you down safely and on time half-way round the world remains remarkable all these years after Wilbur (or was it Orville?) flew a few feet across the dunes at Kittyhawk. The fact that you can look up, book and pay for all these things, research hotels at your destination, check the weather there and make contact with everyone who needs to know your plans, all from your desk, is pretty fantastic also, and that you can do most of that whilst in transit from a little box in your pocket even more so.

It is the little things which let it down though – lack of thought about details, or bloody-mindedness, or price. I am, for example, sitting on the floor at Bangkok airport whilst I type the beginning of this piece. Bangkok is a major airline transfer hub, a place where people from all over the world have to wait for an hour or four between flights. There is everything one could want here including, incongruously, Boots the Chemist and Whittards of Chelsea, but barely enough seating except at the gates. If we are sitting down, we are not adding to the footfall which drives the rents in this vast shopping centre in the middle of nowhere – and the simple way to keep us moving round the shops, they think, is to provide only a few seats. It is an attitude called “sod the customer”. It is a trivial point compared with things like the wings staying on but I will not choose to pass this way again if I can help it – and there is a choice.

Judge Grimm webinar on the Maryland Protocol

When US Chief Magistrate Judge Paul W Grimm was in London for the IQPC Information Retention and e-Disclosure Management Conference recently, he mentioned the Maryland Protocol which he and others have devised for the better handling of electronically stored information in court.

Clive Freedman of 3 Verulam Buildings, the barrister who has been responsible for the actual drafting of the proposed new e-Disclosure Practice Direction as part of Senior Master Whitaker’s drafting group, made use of part of the Maryland Protocol for part of the final version of our Practice Direction, which is to be submitted this week.

There is an opportunity to hear Judge Grimm talk about the Maryland Protocol on Tuesday 9 June at 12:00 EST, when Wave University hosts a webinar at which it will be discussed.

Registration can be made from the Wave University Webinar Schedule.

I will miss it – I am chairing the second day of the Ark Group e-Disclosure Conference that afternoon. On the strength of other webinars in which Judge Grimm has spoken, I know it will be worth listening to.

Home

Birmingham Post reports on costs management trial

The litigation costs management trial on which I reported a few days ago (Jackson launches costs management trial in Birmingham) has been covered by the Birmingham Post.

Their article of 3 June is headed City will be test case for costs rules and includes a photograph of Lord Justice Jackson, three of the judges from the Birmingham Civil Justice Centre who will be running the trial, and Martino Giaquinto of Mills & Reeve who hosted the event at which the trial was launched.

It is no accident that the e-Disclosure Information Project was also launched in Birmingham. The modern, forward-thinking civil courts are representative of a thriving commercial and professional centre which seems to have a more cohesive feel to its business community than many other places.

Remember to seek disclosure of telephone recordings

A “document” is defined in Rule 31.4 CPR as “anything on which information of any kind is recorded”. Lawyers brought up in the days of paper disclosure, even those who have adjusted to electronic versions of those paper documents such as the source Word file, may overlook other things “on which information of any kind is recorded”.

At the top of the list comes recordings of telephone conversations. These days, our most mundane calls are preceded by a message warning us that our call may be recorded “for training purposes”. If that was indeed its only purpose, then the warning is little more than aural clutter to make us hate the company even more than we do already – most of us come across these messages when dealing with our ISP, utilities provider or similar organisation whose institutional incompetence extends to the erection of barriers against the customer. The added delay whilst some Estuary-accented trollop warns you about recordings certainly succeeds in putting me off making any call which is not vital, as is doubtless intended.

The anatomy of practical disclosure and the body of evidence

Having not previously opened my doors to guest contributors, I now do so for the second time in a week. Legal Inc, who are amongst the sponsors of the e-Disclosure Information Project, held a workshop with the medical title shown above at IQPC’s  Information Retention and E-Disclosure Management Conference on 19 May. I was in Orlando at CEIC 2009 and asked Andrew Haslam to write it up for me. This is his report:

Graphical display of thesaurus terms

The graphical display of discovery / disclosure information has been one of the most interesting developments in software designed for search of all kinds. It is specifically so for litigation document review purposes and, perhaps even more so, for early case assessments when you are trying to find out just what the scope is of your document universe.

One of the distinguishing features of such a task is that the searcher often has no real idea of what the search will turn up. In most areas of research, you have a broad idea of the parameters of the hunt – I have been looking up flights and hotels recently, for example, and had the advantage of knowing that I was after a particular kind of information (a hotel, say) in a particular place (or places, given the particularly daft schedule which faces me over the next few days). Ranging shots in Google brought me to specialised databases which had fields to search in which corresponded with obvious inputs – dates, room-type, number of nights and so on – which are standard across most such resources.

Litigation is often not like that. You will, of course, have got from your clients some clues – names, date ranges, commonly-used words and so on – but whilst they may narrow the field, they are not conclusive as to what you might turn up, not least because you (if you are a lawyer) are an officer of the court as well as the client’s gladiator, and it is your practising certificate and insurance policy which is on the line.

Labour’s fall may be matched by litigation’s recovery

I have just sent off my slides for my keynote speech at the Ark Group’s e-disclosure conference on Monday 9 June. Its title is The Empty Bear Garden, and it is about the decline of litigation since the CPR of 1999 and what we can do to stem that. My conclusion is that we are in a position to turn the tide and will do so if we pay more attention to the balance between rules and discretion, focus more on what really matters and what clients want, and be willing to challenge some of the existing orthodoxies.

Roughly the same period, since New Labour’s election in 1997, has seen the rise of what the Institute for Public Policy Research recently called “intolerant centralism”. The state has become ever more intrusive into our lives at several levels: vast databases record every aspect of our lives; cameras watch our every move; faceless bureaucrats have acquired powers way beyond their abilities; widely-drawn (and badly-drawn) laws give policemen and others in uniform the purported right to exercise a discretion unintended by Parliament; highways officers at the bottom of life’s intellectual pile clutter our roads with notices and urge us to “think”; ministers who appear on the surface to have been merely useless (Jacquie Smith) or deeply stupid (Caroline Flint) emerge as sinister, assuming powers over our lives thanks to their party’s majority which we would never grant them as individuals; MPs behave as if the norms of society do not apply to them, relying on the letter, but forgetting the spirit, of the law; rules multiply, each one having the effect of  nullifying our scope and ability to think for ourselves.

Parallel and cross-border developments in eDiscovery

I have just had to turn down the opportunity to speak at a conference organised by LexisNexis in Hong Kong on 20 and 21 July. The invitation was to deliver the keynote speech at the start of the first day with the heading  Globalisation and Digitisation: the Rising Need for Digital Forensics and E-Discovery in Today’s World, which I would have been extremely happy to do.

My Mother’s 80th birthday party is on the previous day and my eldest son’s graduation ceremony is in Leeds on the day following. I could, with a fair wind, have made it to Leeds with two hours to spare by racing at dawn from Heathrow to Gatwick. I have done worse things – my breakfast-in-Sydney-dinner-in-Washington trip last October didn’t allow even time for an espresso between terminals at LA and, as I recounted last week, I made it from Orlando to IQPC in London just as the conference opened. I am game for that sort of thing, but not for missing my Mother’s birthday.

Recommind recommends recognising risks of e-disclosure unreadiness

I do not take a great deal of notice of press releases. If they are interesting, everyone else will gamely recycle their contents, and who wants to be like everyone else? If they are not…. you don’t need me to finish the sentence. And when I say “recycle their contents”, I mean just that – a quick copy and paste and they are done – instant journalism. It has its place but it is not what I like to do.

I do, however, like to be sent PRs, so that I can decide if they are worth the trouble of translating from their native Marketing Crap into English. All those tri-partite, polysyllabic, hyperbolic exaggerations (like that one) which someone has laboured over so assiduously have to be stripped out to try and divine what actually matters (try it: look at most PRs in this business and you will find that every verb has three long adverbs and every noun has three adjectives  – “rapidly, accurately and defensibly” or  “innovative, cost-effective and user-friendly”; once or twice is fine, but by the time you get to the end of a piece in which every word has multiple qualifiers you are gasping for breath).

Nigel Murray makes it to Paris

Hands up all all those who were not convinced that Nigel Murray of Trilantic would manage the 350 miles from the Normandy Beaches to Paris. On a bicycle. In six days. Here is the photograph to prove you wrong.

Nigel Murray arrives in Paris

Back in January, I wrote rather cynically that “I did once see him run, but that was across a pavement to a cab in the rain, so barely counts as an exception to the general rule”, the general rule involving good food, beer and cigarettes. I did not doubt he would do it, though.

The cause was Help for Heroes which supports wounded servicemen. Nigel raised £5,727.87 for this good cause. The event overall has apparently raised over one million pounds.

Nigel kept a record of each day’s events, covering both the cycling and the interesting – and, I suspect, rather emotive – stops which were made at places of significance. His donations page remains open for those who want to help him get past the £6,000 mark.

Well done, Nigel.

Home

Ian Manning now at Raposa Consulting

As regular readers will know, Ian Manning was the initial sponsor of the e-Disclosure Information Project, providing continued support despite his never-ending overseas travel commitments for FoxData Ltd.   Ian’s extensive experience in forensic collections for commercial litigation and regulatory enquiries has provided valuable market intelligence to the Project as well as many e-disclosure anecdotes which have served as the basis for after-dinner conversations.

The point of all this is to explain to those familiar with my web site and blog the changes you will no doubt notice on it.  Ian’s management association with FoxData Ltd ceased at the end of March 2009.  However, as I hoped, Ian is keen to continue his personal support for the e-Disclosure Information Project.  This support will come via his company Raposa Consulting Ltd.

To find out more about Raposa Consulting go to www.raposadata.com

Home

Jackson launches costs management trial in Birmingham

Lord Justice Jackson went to Birmingham on Tuesday to encourage its litigation solicitors to take part in a costs management trial in the specialist courts. The details are interesting, but less so than the policy considerations which underlay Sir Rupert’s approach to the business sector – the Small and Medium Enterprises or SMEs – which is one of his (many) particular concerns. I went to hear him – my interest in the rules and the technology of e-disclosure is infinite, but it is servant to a wider interest in making litigation accessible. “Accessible” means that it is affordable to the clients and still profitable to the lawyers.

I gave up marking the key passages as Sir Rupert outlined the scope of this part of his investigation – it was all important. For those with short attention-spans, I will leap to the end and report that the upshot was that the majority of the assembled company were willing to support a voluntary trial during which judges in the Mercantile Court and the Technology & Construction Court would supplement their case management role by managing costs in tandem with (or, strictly, as part of) their close attention to the other aspects of bringing a case to trial. Not everyone supported the idea, but no-one opposed it. Sir Rupert’s gentle lucidity barely concealed the implication that if this approach did not work then something more drastic will be needed. If it does not work in Birmingham, it would not work anywhere.

Hard to keep up with Lord Justice Jackson

I went to Birmingham on Tuesday evening to hear Lord Justice Jackson launch a new costs management initiative in the Specialist Courts there, and got a taste of the energy which has brought us his Preliminary Report on Civil Litigation Costs so quickly.

As the main part of the meeting drew to a close, he rounded up a small team to finalise a form of spreadsheet costs template, saying airily that if it was not finished that night it could be concluded in the morning. Whether he actually intended to keep them there all night or  stay overnight in Birmingham and resume in the morning was not clear, but his comment obviously concentrated minds and it was done within the hour.

I parted company with him at 7.30pm at New Street Station, and his Guidelines, reporting on the meeting and setting out how the trial would work, were completed at 09.52 the following morning (you see, document metadata does have its uses).

My own report on the meeting (which covered points of wider significance than the costs management trial itself) is being patched together on train journeys and will not be out for a bit – I cannot compete with this production rate. You may be interested in the meantime to read the Guidelines and to see the Costs Estimate Template.

Home

Mock e-Disclosure hearing photographs

For those who have already seen the post about our mock e-disclosure hearing at IQPC last week, I have now added some photographs to it.

They and others can also be found here. They were all taken by Sonia Perez of Guidance Software.

Home

Making a play to sugar the e-disclosure pill

In a previous post (The discovery of disclosure commonality with a trans-Atlantic judicial panel)  I told how IQPC had, at my suggestion,  invited US Magistrate Judge John Facciola and Chief US Magistrate Judge Paul Grimm to come to their Information Retention and E-Discovery Management Conference last week and then asked me how I would like to make use of their talents.

One answer was the trans-Atlantic judicial panel which I described in that post, with Senior Master Whitaker, HHJ Simon Brown QC, Judge Grimm, Judge Facciola and me, moderated by Patrick Burke of Guidance Software. I have long wanted to do a mock e-disclosure hearing and this seemed a perfect opportunity. I saw one a couple of years ago in London in which Judge Facciola played – naturally – a judge. That had aimed at both US and UK procedures simultaneously and had, I thought, fallen between two stools in doing so. I wanted to do one under the English rules. We have had three cases recently – Digicel v Cable & Wireless, Abela v Hammond Suddards and Hedrich v Standard Bank London which had shown the downsides of not following the co-operation obligations under the Practice Direction to Part 31 CPR. Judge Grimm and Judge Facciola have been eloquent in their criticism of those who do not co-operate to reduce costs and who do not display the level of competence required of those who practice litigation. Why not cast them as the judge hearing an application by advocates who fell short of those standards, using facts similar to those of the English cases?

The discovery of disclosure commonality with a trans-Atlantic judicial panel

If I were to define a perfect working day it would go something like this: wake up in a comfortable hotel and take a five minute stroll to Piccadilly; sit on a platform with the two leading US and the two leading UK e-discovery judges and discuss developments in the two jurisdictions; go and see Lord Justice Jackson to discuss the e-disclosure parts of his report; take part in the premiere of your first play, a courtroom drama in which the judges are played by judges and the advocates by people whose life has been spent at the bar; then dine at Rules before going home with the sense, which others seem to share, that the disclosure world has moved on a bit that day.

It sounds all right as a way of passing the time, does it not? So that is what I did on Thursday, on Day 2 of IQPC’s Information Retention and E-Discovery Management Conference. I am but the Boswell to the distinguished set of Dr Johnsons who took part in all this and my main contribution was made months ago. I am on the Advisory Board for the conference, and Sarah Haynes of IQPC rang me up and asked which US judge should be asked to take part in the judicial panel which Guidance Software were intending to run. “Ask Grimm or Facciola” I said, much as one might say “Get Kidman or Jolie” for a film, or “Ask Rooney or Ferdinand” round to play football. Sarah rang back a few days later and said “They are coming – what would you like them to do?”

Everything and everyone at the IQPC Information Retention and E-Discovery Management Conference

I reached IQPC’s Information Retention and E-Discovery Management  Conference 2009 just as the first speaker stood up on Wednesday morning, feeling rather like Phileas Fogg as he burst into the Reform Club with seconds to spare. Although I had not been round the world in 80 days, it felt like it after the 4336 miles overnight from Orlando (see posts here and here as to why I was in Orlando). At least it was warm and sunny in London, unlike damp, dank Florida.

The IQPC e-discovery conference is one of the best in the London calendar, as much for the people one meets there as for the content. At my first, two years ago, I was introduced to three people on one day who have directly contributed to what I do now. Victor Limongelli, now CEO of Guidance Software, gave the first talk I had heard which drew attention to the similarities and differences between US and UK procedure and practice. Master Whitaker spoke rather pessimistically about the difficulties of persuading judges and practitioners that the proper court management of electronic documents was vital to control litigation costs. Mark Surguy of Pinsent Masons talked about the need for lawyers to understand technology and to get to know some providers of software and services who could help them.

An old-fashioned huddle colloquium

My title comes from what appears to be an automatic translation of one of my recent articles which I came across on a site called 123people. What it has been translated into and by whom remains a mystery. My son Charlie Dale found it because it references him. It is called The untapped premature of YouTube as a promotional method and should be read alongside the source article The untapped potential of YouTube as a promotional medium.

The first paragraph turns this:

Lord Justice Jackson will do his launch tomorrow with an old-fashioned press conference.

…into this:

Lord Justice Jackson determination do his get going tomorrow with an old-fashioned huddle colloquium.

I will capture it all and post it somewhere where it won’t be confused with my own actual prose. I never thought of describing what I do as a means of bringing psyche to the commonplace words of the rules and the fresh judgments in Digicel, Abela and Hedrich. Why did the Phoenix Fall not think of launching their song What exceedingly matters to me at evensong? The description of Gordon Brown as the least telegenic partisan concert-master is pure genius.

I leave you with this:

The e-disclosure interplay is delicate, to communicate the least, but marketing ideas eddy for all that….There is wastefulness of elbow-room here to be inventive in decision ways to spread issue, partisan and other messages and to seize unexpected audiences.

Any of you thinking of using automated translation tools may care to get some samples before you start.

Enjoy.

Home

More than just ediscovery panels at CEIC 2009

I have already written (Describing the e-discovery elephant) about the two e-discovery panels which I took part in at CEIC 2009. The panels were only one of the reasons why I came here. There was another formal reason and countless informal ones.

The other formal reason was a meeting of Guidance Software’s Strategic Advisory Board which brought together a small group of people from different parts of the e-discovery field  – two General Counsel responsible for electronic discovery in large corporations, two well-known private-practice lawyers specialising in e-discovery, and two industry experts from other jurisdictions – who sat down with senior executives from different areas of the company’s activities. The traffic passes both ways at these things – the company gets input from those outside it and the invited members learn more about what the company is doing and what it plans to do.  Discussion ranges beyond the company and into the wider industry, with the combination of the occasion and the assembled company taking us down ways not envisaged in the agenda.

Describing the ediscovery elephant

It is pouring with rain here in Orlando. Every so often, a flash of lightning illuminates the large plastic elephants which stand in the pool beside me. Even the most assiduous English official, never stuck for something to put up a notice about, could not come up with a sign reading “Rocks frighten the elephants. Please do not throw rocks”.

The Loews Royal Pacific Resort at Universal is, as its name implies, a holiday destination as well as a conference centre and you have to choose your bar with care. The one we sat in as we finalised our presentations lies between the pool and the bedrooms, and a stream of near-naked beauties dripped their way past us. If that sounds distracting, it is much better than being approached by Shrek and Princess Fiona, who occupy one of the other bars. We don’t get this sort of thing at London conferences.

I am here for CEIC 2009. The Computer and Enterprise Investigations Conference is run annually by Guidance Software to bring a mixture of technical, legal and business events together for people from corporations, law enforcement and other areas with an interest in data preservation, identification and capture. There are about 800 people here, nearly as many as last year. There are not many conferences which can claim that in 2009. Here you can do anything from polishing up your EnCase certification at one extreme to listening to e-discovery seminars at the other. The East Coast location makes it easier for those from Europe, but does not, alas, guarantee the weather.

Compliance with the demands of an e-disclosure diary

I don’t think I envisaged a peaceful life when I decided to commit all my time to promoting electronic disclosure, but I am not sure either that I foresaw this much activity compressed into a short space. It is just as well that I enjoy it. My original policy never to say no to anything which will get an audience for the subject has had to be modified a bit – double-bookings are difficult, for one thing. Every event involves preparing slides and notes, not just turning up on the day, and the everyday stuff – researching and writing – goes by the board when there is always something happening or about to happen. I would not want it any other way but it would be good to have it better spaced. A summary will have to suffice for now, and the summer promises time to catch up.

Clyde & Co selects Epiq Systems and Trilantic as preferred e-disclosure providers

Although the business of the e-Disclosure Information Project involves telling law firms and corporations about electronic disclosure technology suppliers, I avoid discussions about pending competitive tenders in the e-disclosure market. Given the range of people with whom I am in contact, the chances of hearing twice about the same contract from rival bidders are too high and, metaphorically at least, I put my fingers in my ears if I fear I might learn more than I want to know.

No-one, however, could avoid knowing that Clyde & Co has been working to identify preferred suppliers of electronic disclosure services. It seems ages ago that I first heard about it, in a remote country pub (life is not all glossy conferences and airports, you know) and it became clear that Kevin Butterill, Clyde’s litigation support manager, was extremely keen to get it right. The tender became the Moby Dick of the e-disclosure seas, each provider his own Captain Ahab on a mission to hunt it down.

Something for everyone in the Jackson litigation costs report

Lord Justice Jackson’s interim report on civil litigation costs weighed in at 650 pages, not the 1,000 pages which rumour anticipated. It is as well that I am commentator not a newshound journalist, because I missed the big day and was on-air myself at a rather more nuts-and-bolts level (giving a live e-Disclosure broadcast) as Sir Rupert Jackson was being interviewed by the BBC on the more momentous subject-matter of his report.

That there was something for everyone in the report is evidenced by the range of things which others picked up on in reporting the launch. LegalWeek headed its report Jackson to review complex commercial disputes and picked up on Sir Rupert’s expressed determination to cover complex multi-party disputes as well as cases in lower courts. It quoted him as saying “I have come to the conclusion that the Commercial Court is not a sacred territory, which falls outside the terms of reference set for me by the Master of the Rolls……The recommendations in my final report must encompass all civil courts, including the Commercial Court.”

The untapped potential of YouTube as a promotional medium

You can launch political policies, bands and brands on YouTube, but perhaps not 1,000 page interim reports on litigation costs. Lord Justice Jackson will do his launch tomorrow with an old-fashioned press conference. Other things, however, bring the marketing and educational value of video to mind.

Lord Justice Jackson’s initial report on the reform of civil litigation costs is due to be launched at a press conference tomorrow, 8 May. There is an article in Times Online today by Neil Rose headed What will the Jackson report say? which summarises some of the things we might expect to see from what is rumoured to be 1,000 pages long – and that is just the interim report.

The article’s most important point comes at the end – this not a government-commissioned report. It was the Master of the Rolls, Sir Anthony Clarke, who asked Sir Rupert Jackson to undertake what was always going to be a vast and important task. The role of judges is central to any planned reforms and, one hopes, something which is immune from political pressures.

I will not be there, unfortunately. I long ago agreed to do an e-disclosure live video presentation for CLT Onlne which goes out at 1.00 tomorrow.  The bare reference in my slides to the Jackson Litigation Costs Review will be outdated by the time I get to it.

Richard Susskind webcast on the End of Lawyers?

Professor Richard Susskind caused a stir at the ABA TechShow in Chicago in April with his thoughts on the way the future looks for the legal profession. The context was the launch of his latest book, The End of Lawyers?, that comforting question mark flagging the possibility that the profession may survive in some form if it adapts.

I wrote about Susskind’s book when parts of it were trailed in the Times (see Richard Susskind and the End of Lawyers) and I will not repeat what I said there about the potential for change in the litigation support market. Nor will I attempt an overview of Susskind’s wider propositions, which are readily available elsewhere.

I have been listening to a webcast of a discussion between Richard Susskind and Mark Harding, Group General Counsel of Barclays, and focusing on a couple of points which seem to me to both imminent as opposed to speculative (although Susskind’s speculations tend to become the norm rather quickly), and relevant to the management of litigation and other areas which involve the handling of electronic documents. Litigation is the one area which (as I noted in my earlier article) has defied Susskind’s original predictions because (he told me when I asked him three years ago) the clients had not put pressure on the lawyers to adopt technology.

The MoJ and litigation reform

I am not sure what to make of yesterday’s article in the Lawyer. Chaos as MoJ scuppers litigation reform is the headline. Below that, the sub-heading shouts Judges and politicians at loggerheads as Jackson review kicked into touch. My difficulty is that nothing in the article bears out the second half of that assertion.

Judges and politicians at loggerheads? Well, yes, of course. They have very different characteristics and priorities. The senior judges are decent, honest people with a genuine and pressing wish to improve access to justice and to make litigation the affordable right of every business and individual. Not much in common with New Labour then, beyond the lip-service paid by giving an otherwise unknown politician the label “Access to Justice Minister” .

Guidance Software survey for IQPC

The Information Retention and e-Disclosure Conference run by IQPC is usually one of the best in the calendar, with a better-than-usual mix of corporate users and information professionals. It take place this year on 20 and 21 May at Le Meridien in Piccadilly. As usual, Day 1 is concerned with information management and Day 2 with litigation and regulatory matters.

I have several levels of interest in this conference. I am on its Advisory Board and have been involved in much of the planning. I am doing two judicial sessions on Day 2, of which I will say more shortly. Several of the sponsors of the e-Disclosure Information Project are taking part, including Guidance Software, FTI Technology, Epiq Systems, Autonomy and Legal Inc.

E-Disclosure in the £50,000 case

The article to which I am about to refer you is in fact called E-Discovery in the $50,000 Case by Conrad Jacoby and not as my heading shows it. We in the UK renamed the ancient process known as discovery of documents ten years ago and called it disclosure, as part of the frankly stupid idea that if you give something a trendy new name you somehow make it better. Sterling is now so debased as against the Dollar that the difference between 50,000 of the one and 50,000 of the other does not matter much in the context of which Jacoby writes.

How can you handle electronic documents cost-effectively in cases whose value is disproportionate to the work involved in strict compliance with the rules of discovery / disclosure? Many in the UK blame the advocates of litigation support technology, as if we are somehow responsible for creating all this stuff. It exists. It has to be dealt with if you are to comply with the rules. Pretending that your clients and their opponents do not have electronic documents has two outcomes – breach of professional duty, and unexpected costs down the line. Better, surely, to square up to the facts and develop a strategy to handle the documents efficiently.

High praise for e-Disclosure Podcast

I must obviously be even-handed and objective when passing on recommendations for e-Disclosure events and initiatives, and in reporting that CPDCast’s e-Disclosure Podcast has been described by one barrister listener as “brilliant”, I should not be inhibited by the fact that I was the speaker.

I am, of course, inhibited about it, but I pass it on anyway because the whole point of doing such things is to get new audiences for the subject. I will attribute any favourable comments to James Sheedy’s thoughtful questions, as I did in my article about the recording – see Free e-Disclosure Podcast from CPDCast.

That article includes details of how to access the free Podcast. As I said there, I would be pleased to come and present a longer version to law firms and others who would like a deeper survey of electronic disclosure.

Home

Fast Track Directions in Australian Federal Court

The  Australian Federal Court has promulgated new Fast Track Directions which aim to get a case finished within 5 to 8 months, and to reduce costs by limiting discovery and avoiding lengthy interlocutory disputes.

I have noted before that the Australian courts have a more flexible approach to the eligibility of a case for special tracking arrangements – a case is fit for the fast track (subject to some exceptions) because that is what the parties agree or what the court orders, whereas the UK allocation depends on fixed limits.

Pleadings are replaced with Fast Track Statements, Responses and Cross-Claims. There is an express general duty to co-operate and to act in good faith,expressed thus:

5.1 The Court expects the parties and their representatives to cooperate with, and assist, the Court in ensuring the proceeding is conducted in accordance with the Fast Track Directions so that the real issues in dispute are identified as early as possible and are dealt with in the most efficient way possible.

There is also an extension of that duty to co-operate in respect of interlocutory disputes which is put like this:

5.2    Before making any application relating to an interlocutory dispute (including disputes in relation to discovery), the parties must meet and confer and attempt to resolve the dispute in good faith.  If the parties are unable to resolve the dispute, any application about the issue must contain a certificate by the moving party’s lawyer that the ‘meet and confer’ requirement was completed, though unsuccessful.  Failure to so certify will result in the application being immediately refused.

Discovery itself is limited in a manner which reflects the rules, if not necessarily the practice, under the UK CPR. The requirement is

7.1    Except where expanded or limited by the presiding judge, discovery if ordered in proceedings to which the Fast Track Directions apply will be confined to documents in the following categories:

(a)  documents on which a party intends to rely; and

(b)  documents that have significant probative value adverse to a party’s case.

… and there is a duty to make a ‘good-faith proportionate search’ and to explain what steps have been taken.

The court’s duty of active management is both expressly provided for and clearly implicit in the scheduling arrangements. The new Practice Note  fits briskly on to ten pages. It will be interesting to hear how it goes and what the practitioners and judges feel about it after a year of operations.

My thanks to Geoffrey Lambert of KordaMentha for drawing my attention to the Fast Track Directions.

Home

Autonomy audio processing for law firms

Autonomy has wasted little time in extending its search technology into the iManage products which came to it with the acquisition of Interwoven. It has announced an audio processing capability for what is now called Autonomy iManage WorkSite.

The business rationale lies in the growing amount of audio which law firms now have. Voice-mails, recorded depositions, in-house educational materials, and a wide range of other sources are now routinely recorded and kept. The need to search them is no less than the need to hunt down documents in more conventional forms – and it is a measure of how far we have come that we now consider Word files, spreadsheets and other electronic files as “conventional”.

Keyword searching for e-disclosure documents is not like using Google

There is no one-size-fits-all answer when deciding what keywords (and what else apart from keywords) to use to arrive at the “right” set of documents for disclosure. You have to educate yourself to know what the court expects. There is more to it than finding Paris Hilton with Google.

It comes as a surprise to many that the UK Civil Procedure Rules include a reference to anything so sophisticated as keyword searches. Paragraph 2A.5 of the Practice Direction to Part 31 CPR says this:

It may be reasonable to search some or all of the parties’ electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches (agreed as far as possible between the parties) even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances.

We were discussing this paragraph last night at a meeting of Master Whitaker’s drafting group, in the context of the proposed new e-Disclosure Practice Direction. The point at issue (or one of the points from a meeting lasting four and a half hours) was the need to sanction – indeed, to require in an appropriate case – the use of technology, whilst not implying that technology is all you need.   One issue is that the use of keywords is only one of the many technology solutions which may be applied to the task of finding the “right” set of documents – “right” being a neutral term which I use deliberately here (as we cannot do in the rules) to connote compliance with the definition of a disclosable document in a way which is proportionate.  Our wording must cover developments in search technology which are as yet unknown. Another issue is that technology alone, however sophisticated, is rarely, if ever, enough. You need a brain and the instructions for using it in this context.

LexisNexis debate marks ten years of the CPR

LexisNexis, publishers of the Civil Court Practice 2009 “The Green Book” marked the tenth anniversary of the Civil Procedure Rules with a debate chaired by Lord Neuberger which considered the impact of the CPR and assessed its strengths and weaknesses.

The panel members were:

* Sir Anthony Clarke, Master of the Rolls
* Simon Davis – Clifford Chance
* District Judge Michael Walker
* Professor Michael Zander QC – London School of Economics

The debate was recorded on video and can be found on the LexisNexis web site. It comes in convenient chunks – two sets of short excerpts, some highlights, and the full version (for which user details are required). I have so far watched only the highlights but will certainly go back to the full version.

Irish discovery rules embrace electronic documents

By happy chance, the discovery rules in Ireland have the same number as those in the Civil Procedure Rules of England & Wales. Order 31 of the Rules of the Superior Courts give the court the power to order discovery of documents between parties. You will spot even from that much that there is a difference from the CPR, under which standard disclosure (as we, stupidly, and alone in the world, call it) is the default in the absence of an agreement or order dispensing with it. In Ireland, a case must be made for it – not difficult in principle in most cases, I imagine, but an interesting and subtle difference of approach.

Dropping in to Oxford, dropping out to Paris

The printed description of a software application’s capabilities is no substitute for interaction with the people who are selling it, just as the bare record of historical narrative without people does little to bring a subject alive. People buy from people, not companies, and that means getting out and about. It is not a contradiction to say that a disparate group of people or businesses can best become a cohesive selling proposition by using a web site.

We may look back on the first few years of this century as a short period when international inter-personal communication was at its best. We can cross the world more efficiently and more cheaply than at any time in history, but electronic virtual communication is also extremely sophisticated. From now on, I suspect, we will see physical travel move further out of reach and electronic connections become so advanced that it will be hard to justify actually going to meet the people you do business with. We will lose something as a result – a personal element in business which is valuable.

The thought was prompted by a conjunction of flying visits. Jo Sherman was with us at the weekend. Jo is the founder and CEO of eDiscovery Tools, an Australian software company which specialises in electronic data discovery for litigation and similar purposes. It is quite a feat for a relatively small Australian company to sell software to major UK and US clients. The secret lies in personal relationships which may make use of electronic communication to some extent but which must be kept warm with face-to-face meetings. Her apparent ubiquity – this is the third time I have seen her this year, here or in New York – must be hard work, but it seems to generate business. Looking at other suppliers, I wonder sometimes if the slashing of travel budgets in this industry is being done for the right reasons – a lot of it seems to me to be more a matter of creating a perception of frugality than part of a coherent plan. Marketing people seem to think that their carefully-drafted prose will do the trick on its own. People buy from people, not flyers and brochures.

Political masterclasses in electronic disclosure

Her Majesty’s Government (the poor woman must shudder at the phrase just now) continues to provide an ongoing masterclass in how not to handle electronic disclosure projects.

The week-end’s account by Damian Green MP of the police raid on his home and office would be the more amusing if it was not our civil liberties going down the tubes, as PC Plank rifles through an elected representative’s bed and his love letters to his wife in search of Shami Chakrabarti. It is helpful, I think, to get the basics right – sending your team to surround the right house is always a good start.

The Damian McBride story has also developed nicely for those of us whose interests include both e-mail custodians and politics. There are several other strands from news stories which serve as helpful illustrations for the more prosaic business of giving electronic disclosure in litigation, and I will draw them together shortly.

Home

Anacomp gets unqualified SAS 70 Type II security certification

Anacomp, which owns the litigation review platform CaseLogistix, has received a full unqualified SAS Type II certification for its hosting and operations centre at Herndon, Virginia. SAS 70 is an auditing standard established by the American Institute of Certified Public Accountants which allows service organizations to demonstrate they have adequate controls and processes.

You can read the press release to get the details. I do not, on the whole, concern myself with the infrastructure aspects. This is not because they are unimportant – far from it – but because my focus is on the user end, the business and legal context in which an application is used, and on the people who develop and sell it and who support the users.

All the news that’s fit to print from Unfiltered Orange

The source for my story about the US – Swiss Safe Harbor was Unfiltered Orange, the electronic discovery resource run by Rob Robinson for Orange Legal Technologies.

Rob’s then e-discovery blog was the first resource I came across when I began to inform myself about US legal and technical e-discovery developments. We have never met, though we must have been simultaneously in the same place at events like LegalTech, but have corresponded over the years.

The resources available from the Unfiltered Orange page include a weekly update e-mail, Twitter and FaceBook. The update covers the Top 25 eDiscovery stories, and if he happens this week to have put one of mine at the top of his list (Distinguishing workplace spying from data collection), that serves merely as a prompt to do something  I have been meaning to do for some time, and point you towards his site.

Identifying, culling and filtering the world’s e-discovery stories is similar in many ways to the exercises which they describe – there are a lot of them and not all are worth looking for or looking at. I have the luxury of choosing only those which interest me personally. Rob Robinson’s self-imposed brief is rather wider and I am, as always, grateful for the pointers he gives to the stories which matter.

Home

US – Swiss Safe Harbor

It had escaped my notice that the US Department of Commerce and the Federal Data Protection and Information Commission of Switzerland had established a US – Swiss Safe Harbor Framework. The provisions and procedures are identical to those which apply to data transfers between the EU and the US.

Switzerland understood the commercial, as well as the personal, value of privacy whilst those countries which now make up the European Union were still in that state of near-permanent war which governed their relations for centuries. That war has now been converted into the back-stabbings, media briefings and backstairs jockeying for power which go on in Brussels and Strasbourg, from which Switzerland has stayed aloof.

People outside the EU tend to view it as a single bloc corresponding with its political and geographical boundaries. Whilst that is largely true in global trading terms, the neat picture is muddled by specific national distinctions – each EU country has its own privacy and data protection laws, for example – and is entirely misleading in cultural terms. The picture is confused still further by the fact that Switzerland, sitting bang in the middle of the EU landmass, is not a member of the EU.

Informed comment in the Times adds to the Woolf rules debate

No sooner had I published my post Have the Woolf reforms worked? yesterday when Jonathan Maas flicked me a link to an article in Times Online on the same subject. It is called Sad and unsatisfactory – but not destroyed and is written in his personal capacity by His Honour Judge Charles Harris QC, the Designated Civil Judge for Oxford. Like me, Judge Harris was reacting to an article in the Times of 9 April by Lawrence West QC.

Judge Harris is chairman of the civil committee of the Council of Circuit Judges. I came across him when he was the able convenor at a kind of judicial boot camp last Summer. HHJ Simon Brown QC and I were invited to speak there about electronic disclosure to an audience which included the Master of the Rolls.

The focus in Judge Harris’s article is on the greatly increased complexity seen in the last decade, much of it not merely unnecessary but counter-productive. We have not only seen a great deal of new law, but statute draftsmen seem to have lost the ability to write succinct unambiguous law. The CPR and their Practice Directions have grown in volume (that is, pages), in detail, in prolixity and in their implications for practitioners. The remedy, Judge Harris says, is “greater simplicity, with less prescription and preparatory paperwork”.

Not going to Canada for the second time this month

As you may recall, I was not able to go to a meeting in Toronto at the beginning of April, when Senior Master Whitaker and I had hoped to see Justice Campbell and others to talk about common ground between Canada and the UK on the case management of civil litigation. I am also not going to Montreal next week for the LegalIT 3.0 conference  on 20 and 21 April for the prosaic reason that I have only just found out about it.

Jo Sherman of eDiscovery Tools and the Australian Future Courts Programme is coming here at the week-end so that we can talk about the new Australian Federal Practice Note 17 on the use of technology in the management of discovery and the conduct of litigation which she masterminded and which is relevant to our planned Technology Questionnaire and e-Disclosure Practice Direction. She mentioned that she was en route to a panel presentation in Montreal – the first I had heard of it.

Keeping informed on information about informaton

It is getting hard to keep up. The various aspects of information and justice which I write about are developing faster than I can put quill to keyboard.

I wrote my piece An information war at the week-end and updated it when the video emerged of the policeman beating up a woman at the G20 demonstration before posting it today. This morning’s Times carries a piece to the same effect as my article’s comments about protesters turning the tables on Big Brother state, using information as their weapon. There is also an article in the Times today about policemen invoking the Terrorism Act against a man who photographed them in a park (they have been given some re-education on the subject), one about the Damian Green raid (an over-reaction, apparently, according to the Parliamentary Report of yesterday – you don’t say?), and one about the further fall-out from the Damian McBride affair, with questions being asked about searching e-mails to trace the other recipients of the offending messages. Meanwhile, the European Commission has started legal proceedings against the UK for breach of its obligations to enforce EU data privacy laws.

Pretty well every topic I wrote about has therefore been updated by events. Meanwhile, I have seen a headline about Switzerland signing up to safe harbor, a judge has written in the Times today (as I have here) about the Woolf reforms, and there is a Legal IT conference coming up in Montreal which deserves a write-up. Oh, and there is some work to do as well as all this writing.

Some, at least, of all this will warrant further comment. Mr Justice Jackson, as he then was, referred to the issues in the Wembley Stadium case as being like the Lernean Hydra. That, as I am sure you all know, was a hideous creature which would emerge from its murky swamps and terrorise the people. Every time Hercules struck off a head, two more would grow in its place, so the Hydra was a bit like our civil service (and the murky swamps increasingly a metaphor for Downing Street, come to think of it). As I look at all these multiplying stories around the world which warrant reporting, the Hydra analogy comes to mind. I will try to keep up.

Home

An information war – making connections between privacy, liberty, policing, law and government

An American e-discovery site put up a link last week to a video showing police brutality. It is not just me, then, who sees connections between apparently diverse aspects of justice. Privacy and the right to go about your business are fast being eroded in Britain. There is a civil war looming, and information will be its weapons. Lawyers and judges will be in the middle of the battlefield.

Gabe’s Guide to the e-discovery universe, an American site dedicated, as this one is, to developments in electronic discovery, put up a link a few days ago to a YouTube video showing a fight at a football stadium in an unidentified country. A man runs across the pitch waving a banner; a squad of policemen bring him down, and one is seen repeatedly punching the already captive protester. The spectators flood the pitch and attack the police, who retreat. The compact between rulers and ruled, which (given their respective numbers) depends on public acceptance of the right of the rulers to impose law and order, has broken down.

We are heading in that direction in Britain. Policemen behave like that because ministers encourage them to think that they and the government which they represent are above the law. A few days ago, a British policeman brutally assaulted a middle-aged man as he walked home from work. The man died a few minutes later. At a memorial protest about that death, another policeman, his identification number deliberately obscured, struck a small woman across the face with a heavily-gloved hand and then thoughtfully and deliberately hit her legs with a telescopic baton. The government and decent policemen (the majority) are as appalled as the rest of us, but it is the government which has created the climate in which a policeman thinks this is the right way to behave. Several elements, tenuously linked to each other, bring us to this.

Have the Woolf reforms worked?

An article in the Times of 9 April had the title Have the Woolf reforms worked? Written by Lawrence West QC, it makes an uncompromising start with the assertion in the first paragraph that “the reforms — known as the Civil Procedure Rules (CPR) — have been a disaster for the civil justice system”. The right to access to justice is “illusory” and, judged by this standard, “the CPR have been an abject failure”.

West quotes some figures in support of his view that the number of civil actions in the year after 1999 “plummeted as if pushed off a cliff”. The statistical evidence is supported by this more anecdotal statement:

“Before the CPR, the corridor outside Court 12 in the Royal Courts of Justice, the Bear Garden and the Master’s Corridor heaved with lawyers and their clients waiting hearings. Those places have been wastelands ever since.”

You can guess at my support for this viewpoint from the fact that I long ago chose to give the title “The Empty Bear Garden” to my keynote speech for the 8 June Ark Group e-disclosure conference Practical Guidelines to e-Disclosure Management. The Bear Garden is a space in the RCJ at which several corridors, staircases and doors intersect. It has become a gauge of court activity, like a cardiac monitor in a hospital drama. A cardiac monitor makes a noise, however, when it is flat-lining.

Confounding the expectations of a cynical audience

Susan Boyle, the unlikely-looking star of Britain’s Got Talent, reminds us that first impressions may mislead. You do not know how good something can be unless you see – or, in this case, hear – it. Your cynicism as to e-disclosure, like the judges’ expectations of Miss Boyle, may be founded on some wrong assumptions

It is nearly impossible to sell me something which I did not intend to buy anyway. I am almost immune to impulse buying and am brusque to the point of rudeness with anyone who tries to interest me in something which I did not already have a fixed intention to buy. This, I am told, makes me embarrassing company in New York shops where they simply cannot leave you alone – my son saw one assistant making frantic gestures to head off another who was about to bend my ear with his unsolicited drivel because she had just witnessed me biting the head off the last one who interrupted my train of thought. I hang up on cold-callers who do not deliver a compelling message in ten seconds (sorry all you Indian scanning and coding salesmen) and try and avoid going into my bank now that every cashier is on commission if they manage to sell me something.

This attitude dates from the time when I was IT partner at a large firm of solicitors. Every bloody salesman in London would ring me up just to see if I had changed my mind since the last time I told him to sod off. I know what you are selling, I would say, and as and when I want something like it, I know where to find you. That is not bad training for being on the other side of the fence, where my role now is try and persuade lawyers at least to take a look at the sort of things which litigation applications can do. Lawyers are cynical about attempts to impress them; they think they know what to expect from a demonstration; they are pretty sure that they are not interested and that they will not be made any more so when the salesman opens his mouth.

Distinguishing workplace spying from data collection

It is usually possible to reconcile employees’ legitimate privacy concerns and a company’s equally legitimate rights and obligations to collect data if you go about it properly. A story in Der Spiegel shows what happens when you get it wrong. The story does at least give an opportunity to explain the difference between spy software and data collection.

As its name implies, the e-Disclosure Information Project, which I run, exists to spread knowledge and understanding about the collection and use of electronic documents. My primary focus is on the common law countries (mainly the UK and US) which require discovery of documents in litigation, but the increase in the powers of regulators brings the same issues to countries which do not have that litigation obligation. The area where mainland EU principles collide with US discovery is in relation to privacy and data protection matters. I come across these subjects mainly in the context of trying to explain to Americans what the concepts mean, why they matter rather more to Europeans than to them, and how proper regard to privacy is not necessarily incompatible with an adequate collection of data if they take the trouble to understand both the legislation and the underlying concerns which drive the legislation.

Taking the Administrative Courts to the regions

The Times of 9 April carried an interview with Sir Anthony May, President of the Queen’s Bench Division. Its title London-centric? We are taking power to the people conveys the gist of the article. The Administrative Court is to soon to open in Birmingham, Cardiff, Leeds and Manchester.

The Administrative Court handles a wide range of cases with a public law element – immigration and asylum matters, claims against central and local government and against regulatory bodies, as well as certain child care and prisoners’ rights cases. Setting up regional centres has obvious merit from the court’s own point of view – it has become grossly overburdened with, at one point, files stacked in cases in the corridor and a long waiting list of applications awaiting allocation to a judge. There are obvious advantages too from the applicants’ perspective – many of the claims, by their nature, are made by people who cannot afford the additional costs incurred in travelling to London, quite apart from the fact that claims involving, say, a local authority and one of its residents are better heard close to where they both come from.

Autonomy appoints Robert Webb QC as non-executive chairman

Autonomy Corporation Plc has appointed Robert Webb QC as its Non-Executive Chairman with effect from 1 May 2009.

Robert Webb was General Counsel at British Airways from 1998 until recently. He practised at the Bar from 1971, becoming Queen’s Counsel, Head of Chambers at 5 Bell Yard and a Crown Court Recorder. He holds a range of other posts, including non-executive directorships at the BBC and the London Stock Exchange. Autonomy’s CEO, Dr Mike Lynch, said of him that “his experience in litigation, regulatory and compliance issues is directly relevant to our current commercial focus”.

The appointment is a reminder that Autonomy is a British company in origin, with dual headquarters in Cambridge and in San Francisco. Those of us whose focus is on the relatively narrow world of litigation and regulation may also overlook the fact that this is only one of the areas in which Autonomy’s enterprise search applications are used by corporations and government departments and agencies.

One of my former partners used to instruct him often, mainly on aviation matters, and his name is familiar from that as well as from his high-profile role at BA. His twenty five years at the Commercial Bar followed by a broad range of roles in industry make him a good choice for his new role at Autonomy.

Home

Welcome to FTI Technology as a sponsor of the e-Disclosure Information Project

It is very good to welcome FTI Technology as a sponsor of the e-Disclosure Information Project. FTI Technology is a segment of FTI Consulting, Inc., a global business advisory firm, and brings immense resources to bear on the acquisitions and the software development needed to produce a world-class platform for disclosure / discovery.

As usual, I see no point in copy-typing or edit-pasting the perfectly good prose of a well-written press release, and refer you to FTI’s announcement of 27 January 2009 which sets out succinctly what FTI have done with their two flagship electronic discovery acquisitions Attenex and Ringtail Legal. Put shortly, they have integrated the advanced analysis, clustering, rapid review and graphical visualisation strengths of Attenex and the review, redaction and production capabilities of Ringtail.

In layman’s terms (since, as I say, you can read the formal descriptions for yourself) Attenex ploughs through large (very large if that is what you have) data collections, and helps identify material you either want to discard or to review, serving it up in batches. The clustering and visualisation tools allow quick overviews in a form which allows the reviewer to drill down to document level if necessary and to make decisions which both carry through into the detailed review stage and inform decisions about subsequent batches of documents. Ringtail Legal allows you move straight on to the detailed review without having to move the data between applications.

KordaMentha picks EnCase from Guidance Software for Australian eDiscovery

Like sport and so much else, the idea of proving a legal case by discovery of documents is an old English concept which was adopted wherever the English had a hand in establishing a system of law. America kept it when it dumped our tea, our taxes and our King. Australia adopted it with the same enthusiasm as it adopted cricket. A couple of weeks ago, Hong Kong was host to both the Rugby Sevens and our Senior Master Whitaker talking about UK disclosure developments. Discovery is central to Canadian litigation, and Master Whitaker is due to speak about it in Singapore later in the year.

Three things unite all these countries apart from their common law heritage. The problems raised by electronic disclosure are the same everywhere; those of us involved in developing rules and best practices around the world all speak to each other; and there is a handful of suppliers whose applications are used wherever electronic data must be collected and handled for litigation or for regulatory investigation. The resulting cross-fertilisation has obvious benefits – what works in one place will probably work in another, and if an approach tried in one country is seen to have failed, then it is as well to know about it before another jurisdiction goes down the same track. The things I talk about in Birmingham or Bristol are informed by what I Iearn in Sydney or New York, and it would perhaps surprise UK judges and lawyers to know how much interest there is in those places in what happens in the UK.

Electronic Working Pilot Scheme

I have not had the chance to read it yet, but Practice Direction (Electronic Working Pilot Scheme) supplementing rule 5.5 of the Civil Procedure Rules 1998 provides for a pilot scheme by which, in the circumstances set out in the practice direction, proceedings may be started and all subsequent steps may be taken electronically (“Electronic Working”).

The pilot runs from 1 April to 31 March 2010, applies to claims started on or after 1st April 2009, and will operate in the Admiralty, Commercial and London Mercantile Courts of the High Court at the Royal Courts of Justice, with the possibility of extending the operation of the pilot scheme to other courts.

This looks one of the more interesting developments since the CPR was launched, when the electronic filing functions now being piloted were (or so it seemed) muddled in the official mind with the very different concept of electronic disclosure of documents between parties under Part 31 CPR.

More when I have had the chnace to read it properly.

Home

NERDI and ClearGuideAutoKrolLexFTios

The e-discovery 2.0 blog scored an exclusive with a recent post. Under the heading Government Launches Bold New Recovery Effort, it reported the nationalisation of the US electronic discovery industry. A new authority, the National Electronic Discovery Institute (NERDI) was apparently set up with a new portal at EDiscovery.gov with effect from 1 April. In response, the Socha-Gelbmann Top 5 has consolidated under the name ClearGuideAutoKrolLexFTios.

It is faintly disturbing that this could easily be read from top to bottom without a blink. Tom Lehrer famously said that the award of the Nobel Peace Prize to Henry Kissinger made satire obsolete.  How can a mere spoof compete with the daily news at the moment? How about “Home Secretary claims 88p bath plug and her family’s porn viewing from taxpayer”? That particular (true) item is rivalled only by one yet more risible from a while back: “Brown appoints Jacquie Smith as Home Secretary”.  How funny is that? (not very, actually, if you value liberty, privacy and the right to sleep soundly at night, but that is for another article).

Discovering inspiration from heroes of the past

My primary topic, electronic discovery or electronic disclosure, is a sub-set of a wider subject – more than one wider subject, indeed. It is important as a matter of simple business efficiency; it is critical to the subject of access to justice, which matters as much to large corporations as it does to ordinary individuals; and it is fascinating (to me anyway) as an example of technology being applied to move the world on. It is not the pure science – my Grade 9 in Physics with Chemistry O Level was well-deserved – but the conjunction of human endeavour and technology being applied to practical problems which interests me. I may describe some of the e-disclosure applications as “near-magical in their capabilities”, but I stress also that the most important technology lies between your ears.

I have had a couple of days away. If what you come here for is undiluted e-disclosure then you will have to wait – there are posts coming up on subjects as narrow and varied as TREC and search technology, on privacy and German works councils, on Special Masters and on other e-discovery topics. Today concerns wider matters, although the theme – that you can do almost anything if you really want to and have the tools to do it – applies as much to managing litigation as it did to the esoteric examples which have come my way in the past few days.

Welcome to Legal Inc as e-Disclosure Information Project sponsor

I am delighted to welcome Legal Inc as a sponsor of the e-Disclosure Information Project, joining a group which is increasingly representative of the full range of e-disclosure suppliers and service providers.

Legal Inc was set up by Lisa Burton and Dipak Patel. Lisa is a law graduate and Dipak brought technical expertise, the two elements needed to bring technology to lawyers. Legal Inc describes itself as a “full-service one-stop shop” in the field of litigation support. That means that they can take on the whole or any part of a litigation support, e-disclosure and information management project for law firms or corporate clients, working with specialist partners for those things which they do not do themselves.

I see little point in doing a précis of Legal Inc’s services when their web site does that perfectly well for itself (which is not, I should say, true of all the players in this market). Take the litigation support link and skim the Overview | Challenges | Approaches | Benefits pages for a pretty good idea of what Legal Inc offers.

Catching up with KPMG

Part of the function of the e-Disclosure Information Project is to keep up with what the providers of software and services are doing. Given my emphasis on the human aspects of this business (which recurs in this blog and elsewhere in the form of questions like “Would you trust them with your client’s data? Do you like them?”) it is important to keep in touch by going in to see providers or welcoming them out here in Oxford. Since I neither buy nor directly recommend anything, these sessions are free of sales pitches, save in the subliminal and low-key sense that there is a mutual interest in sharing information.

I always seem to have a backlog, both of outstanding invitations and of writing about them. That reflects the balance between things I do directly for the Project’s sponsors, the wider objective informational aspects, the range of material which has to be read from the various jurisdictions in which discovery takes place, and the fact that there is always a conference organiser bullying for a set of slides.

KPMG comes to mind every day for the wholly obscure reason that my coffee cup sits on a tile which was the 1993 Christmas present from KPMG Forensic Accounting. It is functional as a mat, albeit that it shows a 1994 calendar. Like KPMG itself, it can claim longevity in a market which is full of new companies, staffed by people who were still at school in 1994, and in which corporate freebies have a marketing life of about ten minutes. I must have been on their mailing list on the strength of accounting negligence claims which I had run as a litigation partner (including JEB Fasteners v Marks Bloom in 1984 and Al Saudi Banque v Clarke Pixley in 1990, both still cited).

Explaining the Procrustean Bed

My post Zander sees his Woolf CPR predictions fulfilled refers you to an article by Michael Zander QC.

As an aside, a generation deprived of a classical education may be puzzled by Zander’s reference to a “Procrustean bed”, as I admit I was when I first saw it in a footnote to the old Rules of the Supreme Court. Lord Donaldson had used the expression in relation to the size of appeal bundles. I have to say I assumed in my ignorance that this was a geological metaphor. What he meant was that it was not necessary to pad out the bundles to the recommended size, nor omit necessary pages to meet the suggested size. The reference was to the apparently genial host Procrustes, who would invite passers-by to lie on his bed. He would then stretch them or amputate their limbs as required to fulfill his boast that his bed was just the right size for everyone.

One commentator refers to Procrustes drily as “the ancient champion of enforced conformity”. We do not, of course, want such precise conformity from our judges, ancient or not, but some degree of consistency would be nice, at least in respect of disclosure orders. We do not need the same answer every time, but the right answer, a proportionate answer, based on information provided by the parties “at the earliest practical date, if possible at the first Case Management Conference”.

The quotation comes from Paragraph 2A.2 of the Practice Direction to Part 31 CPR. That involves the exercise of informed discretion. Reading the damn thing and applying its provisions is not, however, discretionary.

Home

Zander sees his Woolf CPR predictions justified

Michael Zander QC, now Emeritus Professor at the LSE, was a forthright and eloquent critic of the Woolf reforms which led to the Civil Procedure Rules in 1999. Few took much notice of his predictions, least of all Lord Woolf. I was amongst the vast majority who ignored him, won over I think in retrospect, by Woolf’s eloquence and industrious decency in tackling the twin evils of delay and cost.

It was a shock to open the rather large new rule book and discover that all Woolf’s emphasis on the role of technology – particularly in respect of disclosure – had been reduced to a single reference to the word in the overriding objective. I also recall a sense of growing unease on seeing the sum total of the new burdens which fell on practitioners at the early stages of a case – each of them had been widely debated in the run-up to the final version of the rules, but seeing them altogether simply did not square with the fact that relatively few cases went to trial anyway. How could it be right to impose on every party to every case a set of duties and obligations designed to reduce a burden which was irrelevant to most cases even under the old rules?

Podcast summarises Equivio benefits

I recorded a podcast last week with Warwick Sharp, Vice President of Marketing and Business Development at Equivio. It is available from Equivio’s home page. I know there is no great technology involved in podcasts, and I might be expected to be jaded about technology anyway having been immersed in it since the dawn of time (that is, the mid-1980s) but I still think it remarkable that I can sit in Oxford,talking to Warwick in Israel via a US telephone meeting system controlled by an organiser in London (Enterprise Technology Management) and that we can be listening to the results ten minutes later.

If I am impressed by some basic telephony and recording, then what to make of Equivio itself? Some of the technology in this market does relatively simple things which are hard to explain. It is dead easy to explain what Equivio does, but one cannot begin to think how it achieves it. Does that matter? Not a lot, frankly, as long as you can satisfy yourself as to the results. Equivio has very quickly gained many very satisfied users.

Free e-disclosure podcast from CPDCast

I recorded a podcast last week with James Sheedy of CPDCast. You can listen to it for free and solicitors, barristers and ILEX member can get CPD points for doing so. There is a note at the bottom of this post explaining how to access the podcast.

I have to say that I prefer an audience I can see to a microphone in a padded cell. From the audience perspective, however, there is obvious benefit in having talks like this delivered to their desks and downloadable to an MP3 player, although they don’t then see the slides with which I usually illustrate the subject. I have been asked to do more of these, including a longer series covering the full range of topics – more on this when we have advanced our plans.

What was interesting for me was that James Sheedy composed the questions after some (impressively fast and thorough) research of the subject from scratch. Although much of the ground covered was inevitably the same as that which I devise for myself, the outsider’s perspective helps to bring out aspects which I do not necessarily think of. One of his questions, for example, was predicated on the assumption that the lawyer starts with a room full of paper. The challenge is to persuade people to investigate a purely electronic solution BEFORE existing electronic sources are turned into paper at vast expense in printing and copying.

The FSA swoops on the unprepared

The American Museum of Natural History in New York contains many tableaux – scenes of animals and man in various stages of early development. My son and I spent an afternoon in there when LegalTech had ended and I found that I recognised many familar types from the litigation world amongst the figures, most obviously (too obviously perhaps) the dinosaurs of whom I wrote in LegalTech lessons from extinct species.

I have now been through the photographs which I took with half an eye on their value as illustrations to this commentary. You may expect to see pictures of walruses and buffalo who look like judges,  primitive men for whom technology meant flints and whose idea of co-operation involved spears and clubs (you know who I mean,  all you who use discovery / disclosure as a bludgeon) and, of course, dinosaurs.

Epiq looking for Sales Consultant in London

I have no intention of setting up as a kind of e-disclosure job centre, but I do get approached from time to time by people looking for jobs or by companies asking if I know of anyone suitable for a vacancy.

My eye fell on an opportunity posted by Epiq Systems on LinkedIn for a Sales Consultant in London which is interesting at various levels – anyone recruiting at the moment is news, Epiq, the makers of document review platform DocuMatrix, seems to be on a roll, and how will they fit any more people in the office which opened just over four years ago with four people and which now houses sixty or so?

Apart from any other benefits of working for a growing company, Epiq always seems a place people actually enjoy working in. Amongst the recent arrivals is Renée Lee who joined as Business Development Manager in February – a good match, I would say, for the mixture of hard work and fun which seems to characterise the company.

If you are interested in finding about more about the post, drop a line to Mike Brown, the International Sales Director mBrown@epiqsystems.co.uk

Home

Blame Brown and be frightened of the FSA says Regulator Sants

Hector Sants, Chief Executive of the FSA, made two strong speeches last week. In one he blamed Gordon Brown for his contribution to the economic crisis. In the other he warned of a tough new attitude to regulation which ought to focus minds somewhat.

“It is quiet out there. Too quiet”. I am not sure whence I get this expression, with its intimation of pending violent attack. It could have been in one of those novels of war or Empire which I read as a child – about Hornblower or Richard Hannay or, later, of Flashman; it might have come from one of the old war films, with John Mills peering across the trenches, or scanning an empty sea or sky for the threatening Hun; perhaps it was in a Western, as John Wayne’s instincts told him that a cloud of arrows could be expected anytime soon. These stories often include a powerful but evil figure whose outward success conceals a past which is uncovered in the closing chapter or the last reel. His reputation might, for example, have depended on an alleged “economic miracle” which is shown to have been a sham, bringing misery for millions as it fails.

This sense that something is about to happen has been hanging over those whose business involves litigation and regulatory or internal investigations. The battle analogy is an apt one. Some of the units have been fighting hard since the economic “war” began; others have seen their numbers thinned out as they wait for the coming conflict. As in all the most gripping war stories, the attack is expected on more than one front.

One of those is litigation. The lull in the UK has lasted for ten long years. The CPR achieved its object of persuading parties out of the court system not, as was intended, by encouraging parties down the flower-strewn path to mediation but by making it too expensive to litigate. There is no one baddy here, but several: we can blame the government for its neglect of civil justice and its contempt for that admirable principle of “access to justice” which it mouthed even as it hiked court fees and cut Legal Aid; we can suggest that the rules and those who administer them have paid excessive attention to encouraging settlement and too little to the basic mechanics of case management; we can point to lawyers whose disdain for cutting the hours spent has been obscured by complaints about the rates per hour; not least we can point to clients who produce sow’s ear data and whine about the cost of turning it into silk purse evidence.

Autonomy finalises Interwoven acquisition

An overnight press release confirms that Autonomy’s acquisition of Interwoven has been finalised. It has been understandably difficult to get any useful comment out of either of them (I have tried) whilst the transaction was awaiting the formal approvals necessary to close it.

For those who have invested in Interwoven’s content management applications, it will be reassuring to read that “Autonomy is committed to the on-going development and support of Interwoven’s products and solutions in line with all currently published Interwoven roadmaps.”

What interests my readers is the hosted document review platform Discovery Mining, which Interwoven itself only acquired during 2008. Of this, Anthony Bettencourt, CEO of Autonomy Interwoven, says:

For Interwoven’s Discovery Mining customers, Autonomy offers the most complete EDRM solution on a single technology platform…. We will bring together the best aspects of Discovery Mining and Zantaz Introspect to meet your current and future processing, review and production needs. Autonomy has 6 data centers with 6,000 servers, and Discovery Mining will now become our West Coast processing center while Boston will remain our East Coast processing center.

That tells us little about actual development of the highly-regarded Discovery Mining application. My informal understanding (which makes logical sense) is that Autonomy’s IDOL engine will be put under Discovery Mining. It is not really clear whether we will see the convergence of Introspect and Discovery Mining into a single product or whether the two applications will be differentiated and aimed at different markets. It would not be surprising if long-term decisions like this have yet to be made.

Home

The growing importance of metadata preservation in eDiscovery

If UK lawyers do not share the US enthusiasm about the preservation, collection and use of metadata, that is in part because they are not clear what it is and how it might be used. A forthcoming webinar will be a painless way to find out.

Guidance Software is hosting a webinar on Tuesday 24 March called The growing importance of metadata preservation in eDiscovery. As the developers of EnCase eDiscovery, whose function is the collection across corporate networks of discoverable documents and data, Guidance has an obvious interest in the metadata – data about data – which lies in and around the documents which may become evidence.

How TREC can help you evaluate e-discovery investments

H5 and Clearwell Systems are giving a webinar on 19 March about TREC Legal Track’s practical application in evaluating and assessing search and review methods. Why should we in the UK pay attention?

There is a danger in talking to UK audiences about the higher end of US thinking on information retrieval as it applies to litigation. That word “discovery” (which we abandoned ten years ago for no obvious – or, at least, for no good – reason) serves as a flag which says to UK litigators that it is about someone else’s problem. Other assumptions follow – that the output of such thinking will be academic rather than relevant to everyday life, the volumes will be beyond imagining, the language will be impenetrable and so on.

Certainly, there are some more basic problems for UK practitioners. What is this Practice Direction to Part 31 which the judge in Digicel (St Lucia) v Cable & Wireless banged on about? Oh, I see, they say: big case, foreign business, two counsel on each side instructed by major firms – nothing to do with me then. Now, tell me how I get all these e-mails printed quickly so I can start reading them?

Nevertheless, it is no bad thing to make yourself aware of the thinking in US circles. It is not that we will be in two years where they are now, but that if we watch what they do, we may avoid altogether the worst excesses of US electronic discovery.

Ark Group Conference 8-9 June 2009

The brochure came out today for Ark Group’s e-Disclosure conference taking place in the Ibis Hotel, Earls Court, London on 8-9 June.

The main attraction is Lord Justice Jackson who will be presenting a review of the litigation costs working paper which he is spending 2009 working on. He will be talking about his investigation into cases of all sizes, looking at the costs in all the Specialist Courts (that is, the Commercial Court, Technology & Construction Court, the Mercantile Courts etc) and discussing the limitations in the present system which have been raised by others in the course of his review.

Law Society Seminar – Disclosure – the risks after Hedrich

I spoke yesterday at a seminar organised by the Law Society and sponsored by Legal Inc and Millnet. The theme was as foreshadowed in my article Law Society Disclosure Seminar in London and was implicit in the name I gave it: Disclosure – the risks after Hedrich.

The title referred to Disclosure rather than e-Disclosure because the electronic side to this subject is servant to the primary obligation to give disclosure of documents under Part 31 CPR. It referred to Hedrich because although the solicitors in Hedrich v Standard Bank London were found not to have been negligent, and beat off the wasted costs application brought against them, I am not sure I would count it much of a victory to have had to come off the record in mid-trial and then go all the way to the Court of Appeal to fight off the claim that my failure to spot my clients’ disclosure failings had caused loss (and how) to the other party.

Guidance Software Q4 results – a guide to the wider market?

Guidance Software, Inc., which is amongst the sponsors of the e-Disclosure Information Project, has posted Q4 2008 results which are its best quarter’s results in its history, with revenue of $25.2 million. CEO Victor Limongelli was on bullish form in an analysts’ discussion, whilst retaining a sense of caution wholly appropriate to the uncertainty of the times.

Guidance’s results may be a straw in the wind, an indicator of the way things are going. I say that because its market is up at the front of the process which ends in a discovery exercise, a regulatory inquiry or an internal investigation. If you are in mid-case, then you need a review application. If you are starting down that trail, you are collecting data, probably with Guidance’s forensic tools. If you are a large company which thinks you are going to face a need for collections in the near future, then you are buying Guidance’s EnCase eDiscovery or something else whose purpose is anticipatory rather than merely reactive. The report to which I point you above sets out the numbers of Q4 sales relative to previous periods, as well as the interesting statistic that Guidance taught 25% more students how to use its products in 2008 than in 2007.

Law Society Disclosure Seminar in London

I am presenting a two hour seminar in London next Monday 9 March under the auspices of the Law Society.

Sponsored by Legal Inc and Millnet, both well-known suppliers of electronic disclosure solutions, this is a nuts-and-bolts review of everything from cases to rules, from a survey of the problems to a look at solutions, from points of detail to a review of the wider context. It includes a look at some applications.

The title of the seminar is Disclosure – the risks after Hedrich. Most of it is about electronic disclosure, but that is because most documents now in existence were created electronically, still exist electronically and therefore ought to be disclosed electronically – that is, their electronic existence should be disclosed even if it is not practical or cost-effective to handle or exchange them electronically.

As the sun sinks slowly in the West we say farewell to LegalTech – or do we?

You are all too young to remember the clichéd ending to those American travel documentaries which always ended with the sun sinking slowly in the West. So am I, despite being old enough to remember telexes and carbon paper as the must-have office equipment. The expression lives on, in the UK at least, because of the Peter Sellers parody “Balham – Gateway to the South”, which itself dates from 1964 – a cliché kept alive by a parody which is itself too old for most to remember.

My photograph was taken on the Queensboro Bridge as we left LegalTech for JFK this year, made possible by the generous windows of the large black limousine which Nigel Murray had commandeered at a good rate with a degree of resource doubtless acquired in his army years. This combination of clichés, parodies, sunsets, New York and LegalTech was brought to mind by a slight sense in some quarters that this Leviathan of a show may have had its day.

Light relief at LegalTech

I occasionally like, at the end of the week, to write about things which are not directly related to e-discovery or are, at least, aimed at the lighter side. Charles Christian has saved me the trouble this week with an article which reproduces a photograph of mine taken at Legal Inc’s panel at LegalTech, which he moderated. Jolly sporting of him in the circumstances, I would say.

He also links to a page of photographs which I took at the same session in which I supplement my report on what was actually covered with what might have been said instead.

The captions will not necessarily be meaningful to all. You need to read my report on the session to understand why the whole panel might decide simultaneously to look the other way. The picture of a man apparently telling an after-dinner joke about a solicitor being unable to find documents on a CD means a little more if you know both that Hedrich v Standard Bank London involved exactly that level of technical competence and that Sanjay Bhandari of Ernst & Young’s Forensic e-Disclosure team Services considered a career as a stand-up comedian before opting for the law.  The two gentlemen dominating the doorway are Brian Stuart and Tyrone Edward of E&Y.

This kind of hyperlink tennis – me pointing you to an article by Charles which refers to an article by me about him – does not mean I have run out of things to say. I just like a break every now and then, as no doubt you do.

I was in fact going to write a piece called I never see the sodding kerb till its way too late – about Bat out of Hell, MeatLoaf’s elegiac commentary on the fate of the lawyers in the Fannie Mae Litigation and Hedrich, with a side-note on Mondegreens – but that can wait.

Home

Autonomy panel at LegalTech points to proactive clients – and lawyers

Panel sessions at LegalTech and other conferences combine the best of all worlds so far as I am concerned. The burden is distributed – the moderator has to have a plan and the ability to herd the speakers through it, and those on the panel have to have an agreement as to who is going to cover what, but you don’t have to prepare slides a month in advance nor stand alone under the spotlight hoping that the words sound as good live as they did four weeks ago in the seclusion of your office.

There is enough structure but also room for spontaneity as the discussion takes turns which were not on the formal agenda and, as long as the moderator is good enough to haul you back to the advertised programme, they can be fun to do – assuming, of course, that your fellow-panellists  have something useful to say.

There was no problem on that score with the two panels which I did for Autonomy at LegalTech in New York earlier this month. The programme was the same for both of them. Carter Hopkins, in-house counsel at McAfee, and I were on both of them, but the third player in one was Florinda Baldridge, Global head of Litigation Support at Fulbright & Jaworski and at the other was Laurie Weiss, co-head of Fulbright’s E-Discovery and Information Management Practice Group. Deborah Baron, VP Legal & Compliance at Autonomy, Inc. was the able moderator.

Trilantic panel explores international e-Discovery initiatives at LegalTech

Not much changes at LegalTech from year to year. Sure, the trends come and go – “the move to the left”, Twitter, and “Please look at my CV” being this year’s big things – but for the most part, the same booths, the same faces and the same routines turn up every year.

One discernible change, however, is the interest in what is happening in other jurisdictions. “Abroad” does not rank high in US consciousness. We mocked George Bush when he asked a Welsh singer which state Wales was in, but most Americans, I think, would just wonder why anyone would care which state Wales is in. Sarah Palin thought Africa was a country, but no-one seemed seriously to question whether her foreign experience – a fly-by of some US bases, a refuelling stop in Ireland and a holiday in Mexico  – was adequate for a vice-presidential candidate. In the e-discovery world, most Americans see Europe as a cross between a modest museum and a commercial colony full of obstructive civil servants obsessed with data privacy. For years, the value of the dollar and a terror of terror kept them all at home.

You do not see this until you go to the US. Most of the Americans I know well have a well-rounded world view but that, I now realise, is because I meet most of them outside the US – they self-classify themselves as people who know of the world outside America because that is where I come across them. The insular ones – including, unfortunately, those who make political and commercial policy – stay at home. This matters because the US is still the commercial powerhouse of the world – no-one in America cares, frankly, what Gordon Brown thinks about America, but it does matter what America knows, or thinks it knows, about the rest of the world.

Legal Inc panel at LegalTech lives up to its billing

Litigation support providers from the relatively small UK market  made a good showing at LegalTech in New York this year. Amongst them was Legal Inc who hosted a panel of luminaries moderated by Charles Christian of Legal Technology Insider. LTi now has an American Edition, compounding the sense that the UK has something to contribute to the US legal technology scene.

The Legal Inc panel consisted of Sanjay Bhandari of Ernst & Young, Matthew Davis of Lovells and Andrew Haslam of Legal Inc, with the US represented by Peter Cladouhos of Paul, Hastings, Janofsky & Walker LLP.

The advertised purpose of the panel was to draw attention to some of the pitfalls and dangers inherent within electronic disclosure that can ensnare the un-prepared, and to explain how preparing for, and meeting the demands of, electronic disclosure can be scaled for large, mid-sized and even small organisations. The UK has some relevant case law at last and that, coupled with a planned EDD questionnaire  and increased judicial interest in the time- and costs-savings, suggests that the ability to handle documents and data electronically is permeating down to smaller organisations and more everyday cases.

Lisa Burton of Legal Inc introduces the Panel

Peter Cladouhos, Sanjay Bhandari, Matt Davis, Andrew Haslam, Charles Christian

E-Disclosure Taster Menu in Bristol

I went down to Bristol last week with a group of electronic disclosure suppliers at the invitation of the Western Chancery & Commercial Bar Association. The aim, as in Birmingham last year, was not just to talk about electronic disclosure, but to illustrate it by showing and describing a range of applications and services

Bristol used to be Britain’s second city. In the 18th Century it grew prosperous on the triangular trade which took cloth and iron goods to Africa, slaves to America and tobacco, and sugar and rum back to Bristol. In 1841 the Great Western Railway connected it to London and, in an early example of joined-up commerce, you could travel on GWR trains and GWR ships from London to New York. Its relative prosperity declined as other places boomed and as different industries – ship-building, tobacco, cotton – had their heyday and fell away. There is more industry in the region than one sees from the M4 – I flew over the Severn Estuary on my way in from New York at dawn a couple of weeks ago and noted the miles of industrial zones from Avonmouth Docks down towards Bristol.

All that industry, together with property-related work from the West – Bristol is the first place of any size as you come up from Cornwall or out of Wales – has supported the growth of a strong legal and professional services business. Every other legal magazine in the late 1980s seemed to profile Bristol. Its population of around 400,000 makes it now Britain’s tenth city preceded by London, Birmingham, Leeds, Glasgow, Sheffield, Bradford, Liverpool, Edinburgh and Manchester. It can take as little as 90 minutes to get to London by train.  There are some large barristers’ chambers in Bristol and one does not get the impression that work is in short supply. Bristol is one of ten cities in Britain with a Mercantile Court, that is, a court with a specialist commercial list and judge or judges ticketed to hear mercantile cases.

All very interesting you may say, but this site is meant to be an information resource on electronic disclosure, not a local history, travel guide or Chamber of Commerce directory. Indeed, but disclosure comes with litigation; litigation follows industry and business; and the ability to win commercial litigation work from any region depends on the quality of local law firms and chambers, and on their ability to stop the work from heading to London. It ought to be possible, in fact, for the combination of legal skills, good transport links and an efficient Mercantile Court not just to stem the flow to London but to reverse it. The sixty or so barristers and solicitors who turned out to listen to us presumably want to draw work into their region.

Mediation – not about just settlement but just about settlement

Professor Dame Hazel Genn QC has launched a stinging attack on the downgrading of civil justice and the promotion of mediation at the expense of the civil litigation system. ADR is a worthy parallel remedy but government promoted it more as a means of saving money than as an extension of access to justice. The courts system has been run down and some of the rules changes have succeeded only in driving litigants out of the system

The original and primary purpose of this Commentary is to draw attention to the formal obligations of parties and judges in respect of disclosure under the Civil Procedure Rules, to the problems it causes, and to the solutions available to meet it. Important though that is as a component of cost in litigation, you cannot really look at one such element in isolation. The management of disclosure is a sub-set of case management generally. Case management is a component of what makes justice accessible. Access to justice is a fundamental right in society and it is amongst the primary duties of government to provide and foster it. One of the reasons why I watch and report on what is said by US Magistrate Judge John Facciola, both in his court and outside it, is that he has the same strong sense that his specialist subject – which is the same as mine – is but a part of a wider set of issues.

Dame Hazel Genn QC is professor of socio-legal studies at UCL. Her December speech attacking the decline of civil justice is pithily written up by Joshua Rozenberg in his article Dame Hazel Genn warns of downgrading of civil justice. I see no point in repeating him when you can read for yourself his summary of what has been said (by others as well as Dame Hazel) about the role of government, the implications of Halsey and the retrospective views of Lord Woolf’s reforms.

Judge Facciola LegalTech messages are for UK as well as US lawyers

There was something almost surreal about the discovery that the LegalTech organisers had failed to record US Magistrate Judge John Facciola’s keynote speech, given that Facciola regularly delivers Opinions castigating parties either for faulty decisions about technology or for technological incompetence. Did someone decide “Nah. It’s only that Italian guy – let’s not bother” or did someone press the wrong button on the tape recorder? Whatever the cause, it is a pity. The speech, like many of John Facciola’s Opinions, should be compulsory listening for lawyers and judges, and as much on the UK side of the Atlantic as on his.

The speech was introduced by Neil Aresty of Legal Computer Solutions, Inc. Aresty made reference to the “Christmas Eve decision” in Covad Communications v Revonet. A paragraph from that decision will suffice to set the scene and to show why Judge Facciola strikes a chord in the UK. Speaking of an archaic form of document request which ignored the last 40 years of technological development, he said:

“While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Collections trainees seek Guidance on civil e-discovery

One of the benefits of being linked to the companies who sponsor the e-Disclosure Information Project is the opportunity to talk to those who work for them. These are the people who are out meeting with and working with the users, both lawyers and corporate clients, and it is in part from these conversations that I keep in touch with what is happening. They may, flatteringly enough, have called me to ask for my view, but I generally get as much as I give in these discussions.

Parallel views from across the Atlantic

The respected e-discovery commentator Tom O’Connor has published his initial report on LegalTech on his blog, with the title The Big Takeaway from LegalTech New York. His patch in the US e-discovery scene roughly parallels mine in the UK. We did a panel together at LegalTech (see How safe is safe harbor?) and we are both involved with e-Disclosure Information Project sponsor Anacomp/CaseLogistix.

Tom’s main theme is the growing realisation of the importance of the clients’ data at the left hand (information management) end of the EDRM diagram, and the links between content management and electronic discovery. His comment is actually about the lack of such realisation by lawyers, despite the fact that clients and suppliers are moving there fast – Autonomy’s pending acquisition of Interwoven is clearly founded in part on this realisation.

Tom rightly ties this assessment of the lawyers’ slowness to grasp the point to Judge Facciola’s speech, which remarked on the stubborn refusal of lawyers to accept that technology must be understood by those who purport to conduct litigation. I will shortly put up my own report of Judge Facciola’s speech.

The key, in the US and in the UK, is education. Clients, courts and justice itself are badly served for as long as lawyers refuse to accept that handling electronic documents requires a modicum of knowledge about the subject.

Home

Kazeon to host judicial e-discovery webinar

I have yet to write up the tremendous speech made by US Magistrate Judge John Facciola at LegalTech in New York last week. My excuse, if such be needed, is that it contained so much of importance to anyone practising in any common law civil jurisdiction that it will take some time to capture what he said. For some unaccountable reason, the organisers failed to record it, making it the more important to write it up.

The influence of a judicial perspective on any aspect of case management is not to be under-rated, and this applies more to electronic discovery than to anything else. One of the issues we have in the UK, for example, is one of consistency of outcome – parties do not know what to expect from the judge and so cannot negotiate about the scope of disclosure within a known framework.

US judges are more willing to discuss publicly what they expect from parties, probabaly because they are taught about it and have more exposure to it than UK judges. Kazeon, who provide software and services for corporations, legal services providers and law firms to search for, retrieve and analyse data, has a webinar coming up at which the speakers include two judges.

Hanzo Archives show web archiving at LegalTech

So, you have got your mind round this “move to the left” bit they were all talking about at LegalTech and you are clear about the importance of information management, the first stage of the EDRM diagram as a start-point (the obvious start-point if you think about it) for the collection of documents and data for litigation or for facing a regulatory investigation.

You have your custodians sorted, know how you will manage your Microsoft Office documents, may even have got your mind round the HR and accounting databases. Sorted then, ready for anything, bring it on.

The chances are that you have missed one big thing – the corporate web site and intranet. Unlike, say, individual Word files, each part of a web site depends on others. Unlike your HR or accounting database it probably lacks the tools to check its own integrity, which may depend on elements beyond your control. It probably changed frequently, with no thought as to preservation of the replaced pages, still less the ever-changing content of any database which was the source of the components of the pages. Yet your web site was customer-facing, possibly included pricing or terms of contract, and could be vital evidence in any dispute or investigation. If you think that just copying it all onto a backup tape from time to time is the answer, have a go at restoring your last backup – if, indeed you ever made one.

That is the selling message of Hanzo Archives, whose Mark Middleton came to see me in Oxford a little while back after attending a conference at which I was speaking. I came across him again at LegalTech in NewYork last week, apparently happy that he had attracted attention even in the gloomy corner of the Hilton’s third floor which had been allocated to Hanzo Archives. His observations on what he learned from the booth’s visitors are on Hanzo Archives’ blog.

It is always good to see a British company carrying initiatives to the US, as well as to mainland Europe. It will be interesting to find out how much of the LegalTech interest converts into something more.

Home

How safe is safe harbor?

I spoke on safe harbor on a panel at LegalTech sponsored and led by LDSI. Does it give as much protection as its proponents aver? Why is Europe so concerned about data privacy anyway?

It is a beguiling expression, safe harbor. You picture small boats rocking gently in the sunlight behind a stout sea wall whilst the storms rage beyond. Your precious cargo of data shipped from Spain or Italy is protected from the threatening clouds marked “SEC” and “IRS” and can be processed and reviewed in peace by your trusty crew. European data controllers can sleep peacefully at night confident that they are protected from marauding information commissioners and angry data subjects.

Such is the appeal of the expression “safe harbor” that America started using it simultaneously for more than one completely different concept. One is the registration mechanism thrashed out between the European Commission and the US Department of Commerce in 2000 to mitigate the commercial impact for US companies of the EU Directive 95/46/EU of 1995 on the Processing of Personal Data. Another protects ISPs from copyright infringements by their users. The expression also occurs in Evidence Rule 510 to do with waiver of privilege. This article relates to data privacy.

LegalTech lessons for lawyers from extinct species

Only one practising UK commercial lawyer came to LegalTech in New York. Recession hit the litigation support industry before our eyes. One of the recurring themes there was that the clients are taking discovery in house.  Down the road we saw some other extinct species

As if LegalTech itself were not enough, Sunday, my first full day back from New York, lasted for 24 hours, thanks to disrupted sleep patterns, a full InBox and a five hour meeting discussing potential discovery developments in Australia and AsiaPac.

You know better by now, I think, than to expect a dutiful account of LegalTech. You get from me little in the way of faithful reports of worthy sessions, no deep market analysis, no breathless interviews with industry leaders. Others, I know, sit on the special pews reserved for bloggers and have their reports filed before the speaker has made it to the bar. I got to few sessions, although I did turn up, I think, to all those I was booked to speak at. There is no shortage of industry leaders to talk to – you bump into CEOs in corridors or go up to their eyries above cloud level at the Warwick Hotel – but journalistic scoops are not really my style and I am content to wait for the press releases. I am into broader sweeps than the last big sale or the next major release.

Discovery Practice Note issued in Australia

The Chief Justice of the Federal Court of Australia yesterday gave effect to the long-awaited Practice Note No 17 – The use of technology in the management of discovery and the conduct of litigation.

Those of us involved in drafting the proposed new Technology Questionnaire and draft Practice Direction in the UK have been keen to keep up with parallel initiatives in the Common Law jurisdictions. and particularly Australia and Canada.

The timing of its final release is good and bad from my point of view – good in that I am due to speak on a panel at LegalTech in New York next week about international initiatives in electronic discovery, and bad in that I have enough to do to be ready for tomorrow’s flight without exciting new developments to read up.

Fortunately, one of my co-speakers on that panel is Jo Sherman who was heavily involved in the drafting of the Practice Note, so I can leave it to her to cover it. I will read it on the plane and cover it in more detail shortly.

My thanks to Geoffrey Lambert of KordaMentha in Melbourne and to Seamus Byrne who each sent me a link to the Practice Note within hours of its promulgation.

Home

Legal Technology Awards 2009

I went to the Legal Technology Awards last night at the kind invitation of Nigel Murray of Trilantic. Nigel disappointingly, turned up in black tie and not the lycra cycling gear which we had hoped to see (read Murray to cycle across the Channel if you find this reference obscure).

Trilantic emerged as Highly Commended in the category Electronic Disclosure Support / Service Provider of the year in this, its third year of being short-listed. The category winners were Merrill Legal Solutions.

Welcome to Equivio as new Project sponsor

I am delighted to welcome Equivio as a new sponsor of the e-Disclosure Information Project. As I wrote in November (see New integration and new web site for Equivio) I met CEO Amir Milo at the Masters Conference in Washington. Equivio’s name was already a familiar one, but that meeting and a subsequent read-through of Equivio’s web site emphasised why Equivio is subliminally omnipresent in the data management world.

If, as I do, you spend your time explaining to lawyers, judges and corporates why technology must be used to reduce vast volumes of data and documents to manageable proportions, you learn three basic propositions – rely on illuminating snapshots not lengthy explanations, focus on the things which equate directly to the user’s own functions, and emphasise the benefits of using technology and not just the risks of not doing so. Equivio’s web site does just that, crisply and clearly.

OutIndex releases E-Discovery engine

OutIndex, the electronic discovery software company has added another string to its bow with the release of three Microsoft .NET components to allow others to build their own e-discovery applications.

Between them, the three components provide the tools for extracting metadata, searching data and printing electronic documents and e-mail messages to .TIFF or .PDF. These are the same primary components as those which OutIndex uses in its main processing system. OutIndex’s increasingly informative web site includes a page on its E-Discovery Engine as well as the rest of its widely-scaled product range, from its flagship application OutIndex E-Discovery down to its desk-top application eDiscoveryXpress for in-house processing.

Jackson sets out some litigation costs issues

A thoughtful article by Simon Davis and Simon James of Clifford Chance has appeared on the Lexology site. A purist might quibble about its title – Jackson’s dilemma – or how to cut the cost of litigation – on the grounds that Lord Justice Jackson faces nothing so simple as a choice between one alternative and another, as the article itself makes clear.

It touches on several of the factors which Jackson will want to cover. On the pure costs side, the “loser pays” principle, costs-shifting, contingency fees and CFAs, and champerty (or “trafficking in litigation” as the article puts it)  will have to be considered.

Plenty to write about but no time to write

I had a patch recently when I had no time to write for a few days. Someone sent me a message, not exactly complaining, but making it clear that my apparent dereliction of duty had been noticed. It is not in fact a duty, or does not feel like one, and there is no shortage of things to write about. There is plenty else going on as well, however, and I cannot simultaneously do things and write about them.

Besides, the subject-matter of the article which sat at the top of the blog for a few days warranted the extra exposure before the next one took its place. It is called Fannie Mae – be careful what you agree to with e-discovery orders and concerned the lawyer in the US Fannie Mae litigation who agreed on behalf of his clients to discovery obligations which cost them $6 million (9% of their turnover). His clients were not even a party to the litigation. The outcome ought to suggest to any lawyer involved in disclosure applications that it might be helpful to scope a project before committing your clients to it. It is a suggestion as useful in the Birmingham Mercantile Court as in Washington D.C.

Murray to cycle across the Channel

We have certain expectations of people based on what we have seen or heard of them in the past. Mention a name and you can picture a context. Take Nigel Murray of Trilantic, for example. What comes to mind? Sitting expansively in a bar with a beer in hand, going outside every so often for a cigarette. That is what he was doing when I saw him last night, anyway, much as he has done for the 15 years or so that I have known him. I did once see him run, but that was across a pavement to a cab in the rain, so barely counts as an exception to the general rule.

Seeing someone out of context is a shock to the system, like finding whisky in your teacup or seeing a judge in a lap-dancing club – possible but unlikely, you would think. How about Nigel Murray cycling 350 miles across Northern France over five days in May?  Sounds barely credible somehow.

Autonomy to buy Interwoven

I am not much into instant journalism, but it is nevertheless good to be able to report on the big stories as they happen. Just my luck, then, to be stuck on a train with a day full of back-to-back meetings ahead of me when my InBox started filling up with messages about Autonomy’s agreement to acquire Interwoven.

Both are sponsors of the e-Disclosure Information Project, and both are big players in the legal information world for reasons well beyond their respective interests in litigation discovery – Autonomy owns the review platform Introspect and Interwoven acquired Discovery Mining last year – but much of the combined 20,000 user base involves wider information management, not least in law firms – Interwoven alone has 1,200 large law firm customers.