Thinking straight(away) on e-disclosure collections

Conventional wisdom has it that a forensic collection of electronic data is necessary only where fraud is suspected or imminent destruction is feared. Equally unthinking, to my eye, is the opposite assumption, that a full disk image must be taken of every relevant PC, server and other device, just in case the data might be needed, regardless of the cost.

Prefacing this, as usual, with confirmation that I am well aware that many cases need no more than a few minutes with Windows Explorer and a DVD-writer to collect the data required for electronic disclosure, let’s have a brief canter over the ground which opens before a solicitor when he gets the first call from a client to say that litigation is in contemplation or has actually arrived.

Epiq Systems appoints IT Director for Europe

Epiq Systems, owners of the successful document review platform DocuMatrix and sponsors of the e-Disclosure Information Project, has appointed John Lang as IT Director of its UK office with a Europe-wide brief. His responsibilities will include the development of Epiq Systems’ IT infrastructure in the UK and the evaluation of new technologies to help maintain a high quality of customer service.

The role extends beyond the UK as Epiq takes on bigger and more complex projects which cross multiple countries. Epiq Systems Limited (the UK division of Epiq Systems Inc.) works with 4 out of 5 of the magic circle law firms – and at a global level with 48 of the top Global 50 law firms.

EnCase On Demand training courses

Guidance Software, who are amongst the sponsors of the e-Disclosure Information Project, has launched an on-line training program called EnCase On Demand which gives online access to its courses in enterprise investigations (internal investigations, eDiscovery) and forensic investigations (law enforcement, fraud).

The company has trained more than 27,000 people in the last decade and this initiative offers a flexible and cost-effective way for users to stay up to date.

E-Disclosure conferences give plenty to think about

Those who expect a daily addition to this collection of notes and essays (and I know there are a few such) may have wondered if I have run out of things to say from the paucity of posts recently.

Far from it, but I have been preparing for or attending three conferences this week, each of which has generated more than enough potential copy without leaving time to write it. What follows is a taster which I will follow over the next few days with more detailed reports.

At the Lawyer conference E-Disclosure – Beyond the Rules, I spoke with HHJ Simon Brown QC on the Commercial Court Recommendations and what the courts expect from you. We picked out the parts and the principles which apply to disclosure, and emphasised that everything we talked about applied as much in other courts as in the Commercial Court in cases where the volumes of documents made it proportionate.

If I had known the cost was hundreds not thousands….

The reactions at an e-disclosure conference point up the value of getting an idea of the likely costs before deciding that electronic disclosure is not for you. You cannot assess proportionality without doing so, and may be surprised by the answer.

On my first slide at an all-day seminar for CLT Conferences this week, I had a quotation from the Commercial Court Recommendations.

“Automatic disclosure will not take place until after the CMC, which decides on the scope of disclosure” [Para 68a]

One of the delegates immediately asked “Is this just about the Commercial Court then?”, putting his finger straight onto the central difficulty in trying to raise understanding about electronic disclosure, even with an audience which self-selected as wanting to know about the subject.

No, it is most certainly not just about the Commercial Court, nor only about big litigation between big, technically-skilled firms. Indeed, the implied assumption that “big” and “technically-skilled” go together highlights another point here – there are many big firms who have no idea about electronic disclosure, and plenty of smaller firms who do.

The Court of Appeal on the scope of disclosure

Nichia Corporation v Argos may have been a patent case, but the sum involved was not very big and the principles as to proportionate disclosure and judicial case management are applicable everywhere

The ideal in legal commentary is that you know what the Court of Appeal said yesterday and report it. It is no less satisfying, however, to have been asserting publicly what you think the CA would say in certain circumstances – and then discover that it actually did so nearly a year ago in more or less the same terms.

No Court of Appeal judgment is needed to support my primary assertion that the scope of standard disclosure under Part 31.6 and Part 31.7 CPR is narrower, and may be very much narrower, than that of discovery under the old O24. RSC – see Relevant is irrelevant for standard disclosure where I quote from Lord Woolf’s 1995 Access to Justice Report as the best source for understanding the difference (as opposed to merely knowing that there is a difference) between the old regime and the new one.

Do you need to know how the technology works?

I am about to show you a pop video on YouTube. This not entirely a bit of Friday afternoon relaxation, although I know that some of you wind down on Fridays and even take some week-ends off. It has a serious point, relevant to the use of technology for serious business matters.

To what extent do you need to know how something works in order to appreciate it (in the case of the video) or trust it (in relation to your clients’ disclosure and your professional duties)? In practice there are multiple levels of understanding, from the superficial to the deeply technical. In some cases, you need only to be aware that it is possible to achieve something with some technology, so all you want is the phone number of someone who can bring it along when you spot that it is needed. In others, you may have to justify in quite complex terms why you chose to use one method or application rather than another or none. In very few circumstances do you need to understand the computing science or the technical skill involved, just some basis for trusting that it works.

FTI Consulting to acquire Attenex

As I write this (kindly tipped off by the ever-alert Jonathan Maas of DLA Piper UK LLP) FTI Consulting is running a Webcast about its proposed acquisition of Attenex Corporation announced yesterday. The acquisition is subject to the relevant US regulatory processes.

No time, alas, to listen, nor to think through the implications for the UK market, but you may like to read the press release. The Webcast is (for now anyway) here.

The press release rightly emphasises that the addition of Attenex to FTI’s acquisition of Ringtail means (in their words) that FTI “now owns key proprietary technology for each crucial step of the Electronic Discovery Reference Model (EDRM), providing clients with a single source, industry leading solution”.

The slide supporting the Webcast illustrates this. The processing stage will be covered by Attenex Patterns® eDiscovery software which (their words again) “automates data processing and provides powerful visualization tools for quickly analyzing massive amounts of electronically stored information (ESI)” which will be more closely integrated with Ringtail (there is already software designed to move data between the two products), with FTI’s consulting services as an over-arching link.

Both products can be hosted or installed on site, allowing corporate and law firm customers to use the same technology whichever set-up suits them – which may be different for the same customer on different cases.

More follows.

Access to justice goes wider than the environment

The UK’s treaty obligations to provide legal remedies which are “adequate … effective …fair, equitable, timely and not prohibitively expensive” in environmental cases applies in all cases and in all courts.

UKELA, the UK Environmental Law Association, recently published the report of a Working Party chaired by Mr Justice Sullivan called Ensuring access to environmental justice in England & Wales.

The report’s primary conclusion is that the UK is at risk of being in breach of Article 9(4) of the Aarhus Convention which requires EU member states to have judicial procedures which “provide adequate and effective remedies…and be fair, equitable, timely and not prohibitively expensive” in environmental matters.

The report is primarily concerned, and rightly, with those elements which are peculiar to this type of litigation – principally the existence of a public interest. Much of the report is concerned with costs – not so much their overall reduction, but specifically with Protective Costs Orders. The risk of being stuck with a large and unquantifiable order for costs in the event that the claim is unsuccessful is a powerful disincentive to exercise the rights which the Aarhus Convention is designed to protect. That, of course, must be balanced against the potentially enormous losses caused to developers and others when injunctions delay work.

The Working Party expressly avoided recommendations which would depend upon immediate changes to the Rules. There are two references in their Report, however, which are worth picking up on for their wider implications.

Rocket Dockets in Australian case management

We do not need an express “rocket docket” jurisdiction for everyone to agree that some or all of the case stages may be speeded up or dispensed with. It is, however, worth seeing what is happening in Australia.

Seamus Byrne of eDiscovery Tools in Australia (and now in London as well) responds quickly to my reference to “rocket docket” cases in the US (see Whose discovery rules would you rather break?) by pointing out that a rocket docket pilot is in hand in the Federal Court of Australia.

More formally called the Fast Track List , the pilot takes as its guiding premise that Cases cannot be made less complex, but judges can control the conduct of a case to a much greater extent thereby ensuring efficiency. Discovery has become most burdensome [and in] many cases it the single largest cost incurred in the preparation of the case. Many practitioners in the UK will applaud the conclusion that the practice … of requiring parties’ evidence to be tendered in the form of witness statements has significantly added to the costs.

Welcome to new Project sponsors

You will have noticed two new logos on this blog and my web site. Epiq Systems and Anacomp have agreed to support the e-Disclosure Information Project, and although I put their logos up at once, I have not had time to welcome them properly.

Revealing redactions in Acrobat PDFs

I suggest here from time to time that it is often human error rather than technical failures which cause data to be revealed inadvertantly. For every security loophole which is actually attributable to a system failure, you can find more which result from a thinking failure – a file is left in a cab, or a Government minister parades herself in front of the cameras with Cabinet secrets on display (see People the weakest link in data security).

Quite often the error has a mixed origin – a human misunderstands or misuses the technology with results varying from the merely embarassing to the disastrous. My concern about such events is that it is usually the technology which gets the blame.

Ambiguous appearances in the House of Lords

I scan the Times Law Reports occasionally, looking out for decisions relevant to case management. What I am after is a Court of Appeal decision upholding an order from, say, a Mercantile Court, where the judge has hacked down the issues list, or struck out a statement of case for failure to comply with the Practice Direction to Part 31 CPR or made a draconian case management order with costs assessed immediately and payable in 14 days.

I have not seen one yet, which means either that the judges are not making the orders (they will, they will) or that they are properly hanging their orders on at least two of the overriding objective factors, causing counsel to advise that a robust Court of Appeal is unlikely to interfere. It might, of course, be that everyone is now complying with that hidden but important Practice Direction.