See the Rule Committee in action

The Civil Procedure Rule Committee is having an open meeting on 13 June 2008. I wrote about last year’s one (Rule Committee Open Meeting) in a manner simultaneously respectful and tongue-in-cheek – respectful in that the Rule Committee does an important and under-regarded job well, tongue-in-cheek because I wanted you to read it without nodding off.

I will not repeat what I said last year about the Rule Committee’s statutory terms of reference, but it is worth saying again that it is no small matter to devise a rule which potentially has application (subject to value limits) across all courts and in all circumstances. Those who criticised the Commercial Court Long Trials Recommendations on the grounds that they were not a rewrite of the CPR seem to have overlooked the virtue of devising practice and procedures within the existing rules.

LiST Group expands

I have written appreciatively about the work of the Litigation Support Technology Group – LiST – on my web site. LiST is a think-tank, whose members – all skilled and experienced litigation support people in law firms and analogous organisations – have spent a great deal of time working through the issues which they come across in giving and receiving electronic documents and other data in litigation.

LiST does not purport to address directly the needs of those who are starting out with electronic disclosure – that is my job, but much of what I talk and write about is informed by what LiST does and by discussions with its members. Thought-leadership needs both tiers – new ideas evolve amongst the experts and their wider application needs a different mouth-piece.

Directions initiative in Birmingham

Practitioners in the Birmingham Mercantile Court are being sent a draft order for directions which includes provisions aimed at tighter case management. Why is this useful, and what if you genuinely think that the proposed order should not apply in your case?

I reported (Commercial judges spell out case management intentions ) that the prime movers behind the Commercial Court Recommendations had emphasised that their procedures for streamlining case management were applicable, where proportionate, in any court. This follows from the fact that the procedures – now having a trial period from February to November – involved no amendments to the Rules, and all fit within the court’s management and discretionary powers.

H5 gets safe harbor certification

H5, the high-end provider of automated document analysis and information risk management services for the legal industry, has obtained safe harbor certification from the US Federal Trade Commission.

Most US companies whose business involves handling EU-derived data now have such certification, and it is safe to assume that if a company of H5′s standing has not got it it already, it is because they have chosen not to rush. Whether this implies a new interest in EU markets is hard to say. I hope so, because the H5 approach is one worth considering for lawyers and corporates with very large data collections who just want the result at a known cost rather than the burden of getting there themselves.

Summation back in the UK

Summation is one of the older litigation support software companies – it was founded in 1988. It has made a few attempts to break into the UK market but these fizzled out mainly (to my eye) for lack of a local team and the follow-up which that brings. Now it is back here, and this time with proper backing.

I have not seen it properly for a long time – my attempt to do so at LegalTech in New York last year was defeated by one of those glassy-eyed salesmen who look over your shoulder whilst they talk in the hope of seeing a more important customer, and I did not bother to go back this year. Memo to all litigation software salesmen: the very big UK firms already have preferred systems, and the market which will grow lies in the tiers below them. If someone says he speaks for those firms, don’t ignore him, just in case he runs a blog and an information project which reaches out to that market.

Defensibility of the UK e-Disclosure process

Do the UK courts ever question the manner in which electronic evidence was collected? It is a source of much contention in the US but we have little case law directly on the point here. It is clearly vital to get it right, and equally clear that not everyone does, but why do we not hear more about it?

I listened to a webinar last week. Moderated by Patrick Burke, Assistant General Counsel at Guidance Software, it covered the steps which companies ought to take to be ready for litigation or for a regulatory investigation. Guidance has more than a passing interest in the subject, since their EnCase software is perhaps the best-known of the products which allows a company to take an image of an entire drive or of targeted documents and other data which may be required for disclosure. The speakers were at pains to stress that EnCase is not the only available solution.

I was one of them, bringing a UK perspective to the discussion. The others were Don Little, Corporate Counsel for Rolls Royce in the US, and John Rosenthal, Co-Head of the e-Discovery Group at Howrey LLP. Guidance are sponsors of the UK-based E-Disclosure Information Project which I run – my sponsors have in common that they are all interested in the UK rules, the trends and best practice in e-Disclosure, not just in selling things.

Another e-Disclosure event in Birmingham

A second talk to Law Society members in Birmingham revealed more enthusiasm for electronic disclosure than one might expect given the amount actually done. How do we translate that enthusiasm into action? The only action required is to ask a supplier or two for quotations to inform your decision-making

It was back to Birmingham last night for the second round of talks about e-Disclosure given by me and His Honour Judge Simon Brown QC. As before, the event was organised by the Law Society’s indefatigable West Midlands Regional Manager, Clive Black, and hosted by Pinsent Masons, whose Mark Surguy originally introduced me to Birmingham.

We had an audience of more than 30, which means that over 90 people in all have turned out for these events. They came mainly from local firms of all sizes, with some in-house lawyers amongst them.

These talks are introductory in nature, and distinct from the harder-edged practical-cum-legal training sessions which I am about to embark on around the country for the Law Society. I opened with a summary of what we were trying to achieve – the spread of information about the rules, the available technology, and the way in which the courts are taking a firmer grip on management of cases.

Anacomp captures new sources of information

Anacomp announces new alliances which bring hosted capture to its already broad range of services. The trend towards a one-stop shop will appeal to many.

Anacomp, best known until last year for its docHarbor document repository, has taken a further step towards offering a full service solution for data handling. It first came to attention on my patch – litigation and regulatory disclosure – last year with the acquisition of the highly-regarded document review application CaseLogistix. This seemed a sound move, giving an attractive front-end to encourage data into Anacomp’s enormous storage capacity.

Earlier this year, it turned its attention to the other end of the process – getting data in – by an alliance with IPRO which integrated IPRO’s eCapture application into CaseLogistix. The aim was to provide a seamless data acquisition path from first import into IPRO through to display in CaseLogistix.

E-Disclosure conferences in London 2008

There are several e-Disclosure conferences in London this year, including a couple which have not been seen in this space for a bit. Conference organisers have a keen eye for what is topical and have obviously decided that 2008 is the year in which people will want to know about e-Disclosure.

So they should: the Commercial Court Recommendations and the new spirit of judicial proactivity in case management are not the only factors which will make it necessary to be on top of this subject.

The Qualcomm CREDO Program

The judge who heard the sanctions part of the Qualcomm case set out a program for devising an action plan to prevent future disclosure violations. UK companies may like to measure their own preparedness against it.

On 30 January I finished a post about the sanctions judgment in Qualcomm v Broadcomm, promising two further articles about it – one on the comprehensive Case Review and Enforcement of Discovery Obligations (“CREDO”) program which Magistrate Judge Barbara Major ordered as part of the judgment, and one expanding on the implications of the judgment for UK lawyers.

I was immediately assailed by a reader who suggested that by the title to the first article – The implications of Qualcomm for UK lawyers – I had already promised more than I had delivered in respect of the latter point. That was possibly true, but I reckoned that 2,000 words on the judgment itself was enough to be getting on with. Other things have kept me busy since then and I have not got back to it.

There were further developments on the sanctions side of this case last week, so I thought I had better cover the original CREDO point. The first round, at least, of the “comprehensive case review” has taken place. What were its intentions, and why may it be relevant to those who practice in this area in the UK?

Conference focuses on ADR and Costs

CLAN, the Commercial Litigation Association, is running a conference on 13 March with an emphasis on Alternative Dispute Resolution and costs.

Called Practical Challenges for Modern Commercial Litigators, it addresses issues including

• Litigation funding
• ADR: what the future holds
• Costs: the hot issues
• Fees, Billing and Value: Stop the clock?

Discovering what to do about e-disclosure

The paucity of blog postings recently does not imply that there is nothing to write about On the contrary, there is too much going on to stop and write it all up. A quick summary of what has come up in the last couple of weeks gives you some idea of what the E-Disclosure Information Project does.

First, a recap on what it is for.

The broad idea is to promote understanding of e-disclosure by acting as a link between all those who have an interest in e-Disclosure – corporations, practitioners, suppliers and the courts. The expression “to have an interest” does not necessarily imply actual overt expressions of interest, nor even a recognition that the subject is of relevance.

UK judge flies e-Disclosure flag in New York

His Honour Judge Simon Brown QC of the Birmingham Mercantile Court went to New York last week to take part in a judicial panel on the subject of eDisclosure. The resulting debate should make audiences sit up on both sides of the Atlantic.

We are well used to US judges coming to London to tell us how discovery of documents is managed in US courts. We hear from them what works and what does not work, what problems they encounter, and what methods they are evolving to deal with them.

You might think it rather odd that we have to import foreign judicial talent to tell us about a concept we invented, but I have heard more US judges speak here on the subject than English ones. This year I have been involved in the planning of a few e-Disclosure conferences. The draft programmes usually contain a hopeful slot marked “Judges Panel”. A somewhat paradoxical reason given for the absence of judges willing to speak is that they see too much emphasis in the UK conference programmes on the 2006 Amendments to the US Federal Rules of Civil Procedure.

Let’s just recap on that: the only judges willing to speak on e-Disclosure are American ones who necessarily speak about the FRCP. English judges don’t come and speak because there is too much about the FRCP. The expression vicious circle comes to mind.