Summation of e-disclosure responsibilities

May 31, 2008

Wolters Kluwer, owners of CT Summation, invited me to speak on 20 May as part of their series of thought-leadership talks. The subject was e-Disclosure costs and responsibilities: a primer for in-house and external counsel. I had adopted the theme of responsibility as my central prediction for the year (see Predicting litigation responsibility for 2008), and I spoke briefly about it at ILTA Insight 2008. I was glad of the opportunity to expand on the theme. Read the rest of this entry »


Where were the lawyers at IQPC?

May 30, 2008

The potential audience for these musing ranges from large London firms with Terabytes of data for review down to much smaller firms with modest volumes and budgets to match. A report of a two-day, high-end conference in London will resonate more towards the higher end. Its gist, however, is that what the biggest firms and their clients are doing today, the next tier down will be expected to know about tomorrow. Read the rest of this entry »


It works, Judge, trust us

May 30, 2008

US Magistrate Judge the Honorable Andrew Peck here makes his third appearance in this blog in as many days, following his appearances at the IQPC Information Retention and E-Disclosure Management conference last week.

There is a note about his reputation as one who moves cases along at a blinding pace in my post Guidance on benefits of e-Disclosure and there is a report of his attitude to pleas about EU privacy laws in Whose discovery rules would you rather break?. He also had some useful observations about the conduct of discovery in US courts which, although different in so many ways from our own (right down to having apparently different meanings of the word “proportionality”), nevertheless have enough in common for judicial commentary to travel well – in both directions. Read the rest of this entry »


Whose discovery rules would you rather break?

May 30, 2008

Damned if you do, damned if you don’t is the dilemma which faces many who are responsible for document production simultaneously in more than one jurisdiction. The subject was covered in some of the sessions at IQPC’s Information Retention and E-Disclosure Management conference in London last week, most comprehensively in an interesting hypothetical situation run by Tracey Stretton of Kroll OnTrack and Tahir Khan of Addleshaw Goddard involving a complex set of international transactions, transatlantic implications, litigation and regulation all in one go.

I will not attempt a summary – just to mention it is enough to remind you that those multi-jurisdictional elements require a multi-dimensional approach, and not only in multi-million Dollar claims. Read the rest of this entry »


Limitations on document retention

May 29, 2008

There are certain apparent truisms which fall from the mouths of some of those involved in disclosure / discovery / document retention which it seems pointless to correct. They are not wrong, exactly, or are at least founded in something which is not wrong, but are summaries so concise as to conceal the complexities of the reality.

You must disclose all documents relevant to the matters in issue is the one which comes my way most often. Useful word, relevant, and actually quite difficult to avoid when describing in general terms what makes a document disclosable in UK litigation. What makes it wrong, despite its usefulness, is that it was a term of art in pre-CPR (that is, pre-1999) discovery (the actual words were relating to matters in question) and its use now obscures the fact that the present test does not merely use different words, but actually means something very much narrower than the old Peruvian Guano test (see Relevant is irrelevant for disclosure). Read the rest of this entry »


People the weakest link in data security

May 29, 2008

One of those truisms about data handling, on which I have written from time to time, is that security breaches and data loss derive more usually from personal stupidity than from the failure of technology.

Caroline Flint, the Housing Minister notable more for the quality of her legs than the acuity of her mind, perfectly illustrated this recently, when she strode along Downing Street exposing not the famous thighs (that was the week before) but the front page of a confidential document which she was about to read to the Cabinet. Read the rest of this entry »


Guidance on benefits of e-Disclosure Project

May 25, 2008

If it was slightly embarrassing to find myself the principal subject-matter of a speaker session at the IQPC Information Retention and E-Disclosure Management Conference last week, it is even more so to have the task of writing about it afterwards. But in giving over his speaker slot to a description of my e-Disclosure Information Project, Patrick Burke of Guidance Software neatly encapsulated the reasons why it is needed and why it deserves support, and it is perhaps easier to report what he said than to say it for myself.

It is also an opportunity to show that what is discussed at heavy-weight international conferences of e-Disclosure has a close bearing on what happens in UK courts and on what affects everyday litigation here. Read the rest of this entry »


Guidance Software white paper launched at IQPC

May 24, 2008

My white paper for Guidance Software The Place for EnCase® eDiscovery in Electronic Disclosure for Major Corporations in UK Courts was launched yesterday at the IQPC Information Retention and E-Disclosure Management Conference by Patrick Burke, Assistant General Counsel at Guidance. Read the rest of this entry »


First Law Society seminar on e-Disclosure

May 15, 2008

On Tuesday I gave the first in a series of ten regional talks on e-disclosure for the Law Society to an audience of 70 or so solicitors in London.

My starting point was the CPR requirements and powers – what they are and how the courts are using them. In that context, I stressed two things – that none of the powers are new and that, whilst the Commercial Court may be the formal test-bed for more rigourous practices, the rules apply everywhere. There are new pending developments – the proposed Technology Questionnaire and the formalisation of (inter alia) the disclosure obligations in a standard draft directions order – but the defence “these rules are very new and there is no case law” is not going to find a sympathetic hearing at Case Management Conferences, not least because the relevant rules have been in place since 2005. Read the rest of this entry »


E-disclosure conferences and seminars 2008

May 12, 2008

I have updated on my web site the list of conferences, seminars and similar events known to me for 2008, with hyperlinks to the programmes where they are available.

I have left up the programmes for the past events, since between them they give a good idea of what people are interested in and what are thought to be the key topics for this year. I say that because conference organisers have a good eye for what is topical, and those which I am involved with (which is most of them) have done an impressive amount of research. Read the rest of this entry »


Bringing International Discovery home to all

May 8, 2008

What is the relevance to UK solicitors of a presentation on International Discovery delivered recently by an Australian in Las Vegas? The answer lies in 200 documents – for that is the new mandatory threshold in Australia for using e-Disclosure in litigation. Every litigator should go to at least one e-disclosure conference this year to find out about a set of issues and solutions which are universal.

Those of us interested in promoting cost-effective discovery / disclosure in litigation must keep an eye on developments in other jurisdictions. Knowing what works and what does not work in the US or Australia is important. Discovery is well beyond the Wild West stage, but it is still an area in which the frontiers expand very quickly. New problems meet new solutions, both technical and procedural, and we need to know what others are doing. Read the rest of this entry »


Summation thought-leadership

May 6, 2008

As I have already mentioned, Summation is back in the UK and aiming for a share of the growing market here.

Since I don’t actually sell software solutions, my interest in “the market” is driven by the underlying causes of market growth rather than by the turnover for its own sake. The business success of the various players is an objective measure of the progress which is being made towards encouraging lawyers and their clients to handle electronic documents electronically – a progress which is the objective function of the e-Disclosure Information Project.

Wolters Kluwer, who now own CT Summation, are organising a series of Thought Leadership seminars and have one coming up on 20 May called E-Disclosure Primer for In-House and External Counsel. It is being led by Nigel Murray of Trilantic and by me. The chosen topic is the increasingly significant one of responsibility – responsibility, that is, to clients, courts and shareholders. Read the rest of this entry »


The Litigation Support Marketplace

May 2, 2008

Independent consultant Andrew Haslam of AllVision has published an excellent summary of what the litigation support market holds. Called The Litigation Support Marketplace – an Analytical Framework, it surveys the problems and the solutions which exist to solve them.

You get the flavour it from its conclusion: Read the rest of this entry »


Keywords not always the key to disclosure

May 1, 2008

How useful are keywords in refining document populations? They can be a blunt instrument, but it may be proportionate to use blunt instruments as long as everyone involved is aware of the method used. What does it all mean to the man on the Birmingham omnibus?

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.

This passage comes from Paragraph 2A.5 of the Practice Direction to Part 31 CPR where it is part of the expanded definition of the scope of a reasonable search. It is all a bit clunky, really, in that this part of the PD was a belated add-on to Rule 31.7 CPR (the duty of search) and actually repeats part of that section. At the least, it is tiresome to have two overlapping sources for the same obligation. At worst, this is one of the reasons for the tacit agreement to ignore the whole subject which has been the norm hitherto. Read the rest of this entry »


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