Federal Court of Australia re-issues PN 17

Your heart sinks when you see a headline like that. PN 17 re-issued already? It only came into force in February. What can have turned up which warranted re-issuing it?

It transpires that this is the result of a re-numbering exercise consequent on a decision that only two forms of practice documents will be issued by the Federal Court of Australia, Practice Notes issued by the Chief Justice and local Administrative Notices issued by each District Registrar.

PN 17 is now PN CM 6 and is now entitled Electronic Technology in Litigation. My thanks to Seamus Byrne for providing the links and to Michelle Mahoney of Mallesons who, as always, was quickest to the draw when it comes to ferreting out useful pointers.

Clearing the decks before going to Brussels

I do not pretend that this job is hard work in the way that trying to reach a sales target or managing a large project is hard work. It is far too enjoyable for that. It would, however, be good if all these interesting things could be spread out more evenly across the year.

Did I really agree to deliver 10,000 words for a book chapter on digital evidence by 1 October? Did that have to coincide with finishing off two white papers? Why do all the conferences end up bunched together (three conferences in three continents in three weeks starting this week in Brussels)? Are the Twitter eDiscovery lists always so full of interesting stories to follow up, or have I joined in at a particularly interesting point?  I could write ten stories a day entirely from the leads on there alone – but for the book, white papers and the conferences, that is.

e-Disclosure is like opera – you do not start with Wagner

I am fond of analogies, as you know, and everything from motorway signs to Roman bridges gets pulled into service to illustrate e-disclosure points. It seems to be catching: Craig Earnshaw of FTI Technology in London came up with another when I was speaking to him a few days ago.

I often make the point that suppliers’ inevitable focus on their bigger cases tends to obscure their willingness and ability to work cost-effectively on smaller matters. They have only one home page on their website and it is not surprising that they use it to promote the higher end of their range.

It is like introducing people to opera, Craig said. You do not encourage newcomers to sit through the Ring Cycle, but introduce them more gently with Puccini.

It is a good parallel, embracing the sophistication, if that is the right word, of Wagner, the endurance needed to absorb it, the scale and the technical appreciation required. Most electronic disclosure cases are not that big or that sophisticated, and do not require of the user that he or she is deeply knowledgeable about the technology. The challenge of getting someone to attend their first opera is akin to the challenge of getting lawyers to undertake their first e-disclosure exercise.

Flying the wrong messages across cultural boundaries

Most broad ideas of the characteristics which identify people from other races and cultures contain a grain of truth as well as a dollop of unfairness. The excitable French, stoic Britons and [supply your own words here] Irish turn up in a story in the Sunday Times travel supplement.

An Aer Lingus plane is approaching Paris on a flight from London. An announcement is made in French and in English. The French get into a tremendous flap with (I embellish here somewhat) much “Zut alors!”, “Sacred blue!”, “Where is the pen of my aunt?”and all the other expressions of excitement which we associate with the Gallic nature. The Britons, meanwhile, sit calmly, with what appears to the French as a degree of sang-froid quite inappropriate to the circumstances, whatever they had heard about British stoicism.

It transpires that the cabin crew have got the tapes muddled up. English-speaking passengers were merely advised to return to their seats and fasten their safety belts. The French, however, were told to prepare for an emergency landing, to note where the emergency exits were, and to await instructions from the captain.

Stories of such mutual incomprehension and cultural stereotypes turn up from time to time in the context of foreign data collections (where the standard advice, of course, includes the suggestion that you refrain from calling your hosts’ language “foreign”). Data collection experts instructed by a US law firm went to a subsidiary company abroad to collect evidence for litigation, with the understanding that the culture of the country was that staff were immensely loyal. The collectors were puzzled to find that they were obstructed at every turn, and it took a long time to discover that whatever they had said on their arrival had been interpreted as meaning that the subsidiary’s senior management was under investigation. The employees were just being immensely loyal – exactly as the lawyers had been told they would be.

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New French Data Protection Opinion on US discovery procedures

I bet that headline made your heart skip a beat with excitement, as mine did when I saw that the Proskauer Rose LLP Privacy Law blog has a new entry headed French Data Protection Authority releases new opinion on compliance with US discovery procedures. To find “new”, “data protection”, and “French” in the same country would be quite something, never mind in the same heading.

Disappointingly, there is little new in the Opinion nor (despite my initial excitement) did I really expect there to be. Proskauer Rose supplies a helpful summary and, even more usefully, a link to a translation of the Opinion

If we cannot have something new, at least it is good to have a reasonably clear statement of what the existing position is. Since neither France nor any other EU country is likely to relax its requirements (on the contrary, the general drift is in the other direction) it is as well that US courts and lawyers have the clearest possible statement of what the restrictions are and what can be done within them to meet, as far as possible, the requirements of a US court or authority. Leaving aside the detailed definitions and regulations, which you can read for yourself, the main message is that quite a lot can be achieved by, for example, anonymising data and some serious filtering.

Top 10 tips for working with E-Discovery from Tom O’Connor

The programme for the Masters Conference in Washington on 13 and 14 October is now published. It looks set to be even better than last year’s, even if you ignore my own small part in it. I will come back to that in a separate post.

More imminently, on 24 September, the Masters Conference is running a webinar given by the well-known e-discovery consultant, Tom O’Connor. Tom’s subject is Top 10 tips for Working with E-Discovery. The ten tips are the ones which Tom gives to his clients at their first meeting and should be well worth listening to.

The webinar takes place between 12.00 and 1:00 PM EDT (5:00 PM BST) and you can register for it here. The advertised context is US state and federal rules, but my experience of listening to Tom (which I do about once a fortnight) is that he has a large measure of sensible advice which travels well across borders.

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The best technology is useless without the right people

In electronic disclosure as in everything else, the technology itself is unlikely to cause the problems. For the moment at least, it needs direction from human intelligence. Money spent on equipment is wasted if not supported by a brain cell or two and some project management skills.

The information boards which are spreading along Britain’s motorways are a good example of  technology applied to a useful, everyday purpose. They give the ability to forewarn drivers of danger or delay ahead so that they can slow down, plan a diversion or whatever. You can now even see what the notices say from the website at TrafficEngland – I guess it is technically quite simple  to repeat the information there but that makes it no less useful and it seems very clever even if, as my picture shows, half of them merely consist of nannying advice – there are few things quite so annoying as getting unsolicited advice from people you despise.

Evidence Eliminator does the trick for Phoenix Four

A director who destroyed documents in anticipation of a government investigation may not be subject to any penalty for the bare act of destruction divorced from any actual proceedings against him or his company. If that is indeed the position, there will be calls to change it. Bad cases make bad law.

I will not try and make sense for you of the story of how the Phoenix consortium acquired carmaker MG Rover for £10 in 2000, departing five years later as millionaires when the company crashed into administration. You will get the picture from the Sunday Times headline How the Phoenix gang plundered MG Rover and from the paragraph in the article which reads:

While it stops short of accusing the Phoenix directors of fraud, it paints a picture of a group of men happy to pay themselves tens of millions of pounds, much of it stashed in an offshore trust, while the carmaker ran up big losses and ultimately ran out of cash, throwing 6,000 people out of work. They ignored corporate governance guidelines, switched valuable assets out of the car company into their own names, lied to MPs about the nature of their dealings, and bawled out the few advisers who dared to question the legality — or morality — of their actions.

Reaching informed agreement that e-disclosure is not needed

Having just published an article about whether electronic disclosure is needed in all cases, I turned to Ralph Losey’s blog to discover that he had just published an article about whether electronic discovery is needed in all cases. We do have fun on our Sundays, don’t we?

My article is called How would Bray & Gillespie play in the UK?. The references in it to the propriety of making informed decisions against e-disclosure are a mantra which I often include to make it clear that electronic discovery / disclosure is not the inevitable outcome; the target is the right decision and the proportionate decision, and such a decision cannot be made without weighing and costing all the options. Ralph Losey’s article is called Paper or Plastic? The Wisdom of Supermarket Bag Boys and the Need for Local Rules which explores, amongst other things, the extent to which the obligation to discuss e-discovery at a Rule 26(f) conference can properly be discharged by a cursory agreement to opt for paper; the alternative, plastic, is seen as being:

where you waste a ton of money paying vendors to chase down unimportant ESI and pay young lawyers to read emails about what people had for lunch, which are then produced to each other on plastic CDs.

Ralph asks “Is there a conspiracy among attorneys, officers of the court, to disobey the very rules that they have sworn to uphold?” and concludes that he is not willing to go quite that far – yet. There are others in the US who would say that, and I used almost exactly the same words, mutatis mutandis, on my first outing before British judges two years ago, with the tactful rider that judges often made themselves silent co-conspirators by not making sure that the right questions had been asked. Ralph puts the same point this way:

[Judges] approve by their silent acquiescence. Not all do, of course, a few e-discovery oriented judges speak out, and speak loudly, but they are a small minority. Most judges just look the other way.

How would Bray & Gillespie play in the UK?

Bray & Gillespie is a US eDiscovery case which has attracted attention partly because its outcome was so predictable and partly for the strong views expressed by the judge as to the conduct of those involved. What would have been the outcome if the same facts came up in a UK court?

The US courts are seeing an increasing number of cases in which the basic competence of the lawyers is called into question and, if found wanting, is punished by sanctions. These rarely involve a bare failure to understand the technology even where it is the technology which is at the heart of the case. The defect is not that the lawyers did not understand computers but that they had not read the rules and the opinions which make it clear that the electronic documents must be handled properly. This compartmentalising of the technology itself (on the one hand) and the rules relating to its use (on the other) may seem to be a distinction without a difference but it matters very much; the lawyers are hired for their legal knowledge and skills and cannot excuse themselves for failing to know the law.

If you were to say to a lawyer “Do you know how an MS SQL database works?” he might reasonably say that he does not. If, instead, your question is “Do you understand the extent of your obligations to disclose documents?”, he cannot answer “no” without admitting to professional incompetence. One of the problems in this area is that lawyers conflate the two questions and believe themselves exempt from understanding anything at all about the subject.

I got it from Twitter – Normandy in pictures 1944 and now

Most of what I write about, however unlikely the starting point, brings you back to electronic discovery / e-disclosure sooner or later. Even I, however, can find no such connection for what I am about to point you to. I don’t mind, and I do not think that you will either.

The first mental draft of this post extended to a survey of the range of topics which I squeeze into here ancillary to or as illustrations of e-disclosure points. I will skip them all bar one, and perhaps come back to the rest another day.

The surviving link is the use of Twitter as a source of both information and contacts. As you will have gathered, I see it as a marketing tool of immense potential as well as a significant challenge to traditional lines of communication between lawyers (or any provider of goods and services) and their clients.  Leaving all that on one side today, have a look at this amazing set of photographs which juxtapose scenes from post-invasion of Normandy in 1944 and the same views today.

Using Twitter to talk to your clients

My article Twitter as a source of e-discovery information drew a comment from Nick Wade, Group Product Manager for Symantec’s Enterprise Vault – Discovery. I had focused on Twitter as merely a source of information. Nick draws attention to its value for keeping in touch with customers, and points to other resources. His comment is as follows:

Great article on the expanding role of social media in our world of Discovery news, Twitter being one of those prime avenues of faster information dissemination. I was also interested as I worked at Mallesons quite some time ago, and I still enjoy seeing my old colleagues’ names in the stream.

I also think an excellent example of Twitter’s use is to find like-minded people and have a new ability to engage in short conversations with them. Shel Israel (http://twitter.com/shelisrael) has written a fine book about this and I’m reading it now; Twitterville. I heartily recommend it, as it’s a strong follow-up to his first book co-written with Robert Scoble (Naked Conversations). And here’s one final use; a lot of companies use it to find new avenues with which to talk to their customers. We do it at Symantec and it has been very useful not only to point people at articles, releases, technotes, webcasts and so forth, but to help with problems and resolve questions – all more quickly than we could before. Companies should be in Twitterville (as Shel says).

One quick thing – I’d certainly find it useful if you provided a link to Michelle’s twitter (in this instance) [quite right - have done so].

Twitter as a source of e-discovery information

The best way to get informed about e-disclosure / ediscovery news first thing in the morning is to follow Michelle Mahoney’s overnight tweets (they are at http://twitter.com/michmahon). That is “overnight” in UK terms, since Michelle’s day starts rather earlier than ours – she is Director of Applied Legal Technology at Mallesons Stephen Jacques in Melbourne, which gives  her a head start on the rest of us (or perhaps she does them at night – I’ve rather lost track after a day when I went to bed at 4am).

The last few minutes have brought one of those confusing conjunctions of events which turn up from time to time. As I started dictating this post, I received an e-mail announcing Virtual LegalTech on the 19 November at which Michelle, George Rudoy (Director of Global Practice Technology at Shearman & Sterling), Christopher Byrne (General Counsel at Wave Software) and I are due to talk about international e-discovery. I had barely finished the first sentence, when another e-mail turned up reporting that George Rudoy was following me on Twitter. Since it was George who first suggested that I used Twitter, the timing was apt. I am humbled to see that the few people whom George is following include not only Michelle Mahoney and me but the New York Rangers.

More than one reason for new FTI Paris presence

It is interesting to find FTI Consulting, Inc. opening a new forensic and litigation consulting practice in Paris. There is more to this, I suspect, than the economic truism that, for those who can afford it, recession is the best time to expand and to invest against the anticipated upturn.

The press release gives three reasons for opening a new office – to deliver forensic accounting and litigation consulting to FTI’s existing French and French speaking clients, to develop its international arbitration practice in Paris, and to build on its electronic discovery and forensic technology work in France. I imagine that the business case included other and more specific factors such as the increasing incursions by US courts, regulators and government bodies into non-US subsidiaries and sister companies, investigating fraudulent activity either prompted by or exposed by the recession, and increasing activity on the part of EU regulators.

FTI are among the sponsors of IQPC’s Information Retention and E-Disclosure Management Conference in Brussels on 30 September and 1 October. My own specific reason for being there is that Guidance Software, another sponsor of the conference  (and, like FTI, a sponsor of the e-Disclosure Information Project), has asked me to take part in a couple of panels. I would be there anyway this year for the same reasons as are behind FTI’s European expansion. There are still seats available if you want to join us there.

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7Safe blogs to keep us informed about e-disclosure forensics

E-disclosure Information Project sponsor 7Safe has joined the growing number of businesses using a blog to pass on information about what it does and what is happening in the company. It is a powerful and cheap marketing medium whatever you are promoting.

It will not surprise you to know that I believe strongly in the role of blogging as a means of conveying business information. My blog began as a backup resource to my website, a place, as I pictured it, where I could drop snippets of information without the relative formality and structure which a website requires. It speedily became my main output platform, a place where I sometimes put thousands of words each week. Although I intended it primarily as a feeder for my website, most of the traffic in fact goes the other way, with my website acting as an index to recent blog articles. I do the same for a law firm client and am about to start another. It works.

Who needs a bridge when the river goes away?

The mechanics of electronic disclosure are not an inherently legal function like Will writing or conveyancing. Instead of assuming that the work will always be theirs, lawyers must ask themselves why the clients should not divert it somewhere else.

There is something comforting about the certainty that you will always be needed. Doctors can always be reasonably sure of a steady flow of patients. Farmers and others engaged in food production know that people will always need to eat. It is not yet foreseeable that we will do without some form of energy piped into our homes. Fashions in clothes may change but we will always need something to wear.

Many apparent certainties, however, do not in fact last for ever. An article in last week’s paper predicts the end of fixed line telephony. A petrol station or roadside inn finds that its busy road is bypassed. I live between a canal, the latest thing in transportation when it opened in 1790, and the railway line opened in 1846 which killed canal trade overnight. Sometimes the need for a skill set drops away – a Western doctor specialising in, say, cholera, rickets and consumption came to need new areas of specialisation.

The need to handle torrents of documents has historically generated floods of work for lawyers,  subsidising other areas of the firm’s practice such as the delivery of high value advice from their expensive offices as big cases brought big disclosure exercises and the opportunity to turn their assistants’ hours into large bills. What, however, if document handling flows away to others?

Guidance Software launches EnCase Certified eDiscovery Practitioner Program

As you will have gathered from recent posts I am not a supporter of the idea that anyone working in the ediscovery / e-disclosure field must have a certificate to prove their competence. My opposition is based largely on the near-certainty that such a requirement will operate as a bar to new entrants and on the probability that any organisation purporting to offer generalised certification will speedily become a self-perpetuating oligarchy bound up in its own bureaucracy.

I exempted from this opinion the specialised training required for the proper use of highly technical applications – those hiring people who purport to know how to use such products clearly need some evidence that the employee or consultant has reached the developer’s standard of competence, and I cited Guidance Software’s EnCase as an example.

Guidance Software has now supplemented its wide range of training courses with the new EnCase® Certified eDiscovery Practitioner (EnCEP™) program which adds to the bare skills needed to use EnCase by extending out to include planning, project management and best practices in its use. It seems to me to be a logical extension of their application training that EnCase users should understand the legal and the technology context in which EnCase is to be used. This is a step in the right direction.

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New edition of American Legal Technology Insider

The current edition of the American Technology Insider is out, with Charles Christian’s report on ILTA 2009 and some spending statistics which are realistic rather than cheery in the short-term at least. There is also, as always, a succinct summary of the latest industry news.

The American Technology Insider introductory page explains what is covered in ALTi, and how you can get one delivered to your mailbox for free. There is also a section headed “For PR and marketing departments” which makes it clear that ALTi is news-driven rather than led by advertising.

The British version seems to have been  around for ever. The means of publication may have changed but the format and the style remains as it began, probably with a report of the implications for lawyers of Charles Babbage’s planned Differential Engine in 1822. There is no obvious reason to change a formula which works and, more than a year after the launch of the American edition, that formula seems to go down well there as well.

Consistent with its own emphasis on short, snappy reports, the new edition of ALTi carries a quotation from Donna Payne of the Payne Group: “If you can’t demo a product in 15 minutes, you don’t have a product”. The point, I think, is not so much whether you have a product as whether you can get an audience for it. I went round the ILTA booths asking for 15 minute demos. They all seemed a bit taken aback by this, but I have to say that they all rose well to the challenge.

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Fifth Annual eDisclosure Forum in London for only £99

London’s Fifth Annual eDisclosure Forum takes place on 13 November. Run by Thomson Reuters with Sweet & Maxwell, it is generally agreed to be one of the best in the London calendar. The delegate fee is only £99 + VAT, and any firm or company which anticipates litigation involving electronic documents (and who will not?) in the coming year should be there.

It is not just the very low delegate fee which makes this conference attractive. It is the only one whose program is designed from the beginning by its co-chairs rather than by the conference organiser. I know that, because I am again one of them. An e-disclosure conference must be simultaneously sensitive to local needs and reflective of international developments and there is a relatively small pool of people able to speak with authority at both levels.

The UK is well-placed between the EU and the rest of the eDiscovery world

The first big eDiscovery conference of the autumn is IQPC’s Information Retention and E-Disclosure Management Europe conference in Brussels on 30 September and 1 October. I am going there mainly to take part in a panel organised by Guidance Software involving, amongst others, US Magistrate Judge Andrew Peck of the Southern District of New York, and Senior Master Whitaker of the Queen’s Bench Division, Royal Courts of Justice in London. We are to be joined by three European judges, Judge Abeline Dorothea Reiling, Vice-President of the Amsterdam District Court, Judge Frank Richter of the Supreme Court of Hesse, and Judge Carla Garlatti of the Court of Appeal of Venice.

Although the UK is, perforce, part of mainland Europe for many purposes, one of the (many) differences lies in our respective systems of domestic law. The UK has a common law system very much closer to the US, Australia and Canada than to France, 22 miles away from Dover. The discovery of documents is a common law concept, and one which most of Europe has largely managed to avoid until recently.

Second Digicel judgment concerns privilege not e-disclosure

A second Digicel judgment does not bear on the subject of e-disclosure, but relates to alleged waiver of privilege in documents containing legal advice. A mention of it here might forestall confusion on the part of those who turn up a Digicel judgment and are puzzled to find no reference to electronic disclosure.

I offered my excuses in a recent post (A round-up to catch up) for not providing all the hyperlinks to the conferences, companies and articles referred to in the article. It can double the usefulness of an article to include easy jumps to sources referred to; it can also substantially increase the time taken to finish off an article to find all the references and deal with the mechanics of effecting the links.

For English cases, I generally use the admirable British and Irish Legal Information Institute (BAILII)  because it is available to all and has a simple, fast search mechanism. Although I refer frequently to Digicel (St Lucia) v Cable & Wireless and have innumerable places of my own to look it up, I find it easier to keep the BAILII search screen open and just type “Digicel” into the search box. That is how I discovered recently that there has been a second published judgment in that case. I draw it to your attention partly for its own sake and partly to save the rest of you from picking the wrong one as I nearly did. The judgment was delivered on 17 June and concerns a waiver of privilege point which came up on the 25th day of the trial.

Conveying business ideas with short videos

Videos about the e-discovery /e-disclosure industry can be by captains of industry or the junior trainee, can cover everything from pure technology to business commentary, and can be formal or otherwise. A set of short videos by Mike Lynch of Autonomy shows that informed informality from the top can come across well.

I am, as I have mentioned, finding some interest in the idea of using videos, and specifically videos delivered by YouTube, as a means of getting the e-disclosure / e-discovery messages across. I was attracted partly by their immediacy and accessibility, but also by the fact that they suited the times both as to their cost (which can be minimal) and their use of popular technology to convey technology messages.

The potential scope is extremely wide, ranging from technical explanations (“here is an example of conceptual search”) to putting illustrative flesh on narrative bones so that bald references to, say, forensic collection of data might be illustrated by a short film showing somebody doing just that.

Such videos do not have to be technical. Electronic discovery / disclosure involves businesses of all sizes, from established giants to hopeful start-ups. There is value in hearing from those who have made it with messages for those who hope to follow them.

A round-up to catch up

There is a fair amount going on at the moment and a round-up note seems a good way of catching up. I will come back to some of these topics shortly with more detail than there is time for just now.

ILTA generated a fair number of words – these are interesting times and it seemed important to capture some of the points as they flew by. The certification debate matters, as does the market mood at this stage in the recession and the furthering of US-UK commonality in e-disclosure even as the political special relationship receives its coup de grace. Twitter has taken up time – not working out how to use it nor the 140 character posts themselves but the leads and links which it has pointed me to.

My conferences page is out of date, mainly because of the time taken up with pending conferences. I am involved as speaker, panellist or co-chair in IQ PC’s Brussels conference on 30 September and 1 October, in the Masters Conference in Washington on 13 and 14 October, at the LexisNexis conference in Singapore on 21 and 22 October and in the Thomson Reuters Fifth Annual e-Disclosure Forum in London on 13 November. I will say more about these and give links to them shortly. These are all opportunities to carry the e-disclosure /e-discovery message far and wide, as well as to find out what other people are doing and talking about. I must here, as elsewhere, acknowledge the support of the sponsors of the e-Disclosure Information Project whose logos appear here and without whom it would not be possible for me to go to these conferences.

EMC and Kazeon: can we have Twitter back please?

I am new to Twitter and have yet to get to grips with all the conventions. Its primary use amongst eDiscovery people (no-one there talks of e-disclosure, alas) seems to be to refer others to interesting articles elsewhere. That seems to me to be a worthwhile function by itself, with the other networking benefits (which I am yet to get into) as a bonus. It has obvious marketing potential for the wholly legitimate reason that joining in is part of the collaborative spread of information about the subject which has the potential to benefit everyone  – the referrer, the author of the source referred to, interested bystanders (which may include potential buyers), and the market generally. So far as I can see, only one participant is using its tweets as a bald advertisement, and I hope everyone else will boycott them.

If I could wish for one thing, it is that people would refrain from making multiple references to the same source in close succession. There is a distinction here between what you might call “thoughtful” articles (or less than thoughtful in the case of a recent FT one presently causing a stir) and mere press releases – the former might warrant the endorsement of several tweeters whereas the latter really only needs one reference every few hours. The point emerged in relation to the announcement of EMC’s acquisition of Kazeon. Sure, it is news of some significance, but it is hard to see who benefited from several days’ worth of tweets pointing to the press release. As I remarked elsewhere, the first 30 or so were enough to convey the message, and all the repeats simply drowned out other, and potentially more interesting, references. You need to be pretty dedicated (or have a lot of time on your hands) to pay attention to every one.

I disclose the discovery that Britain is on its own

The UK cast itself off from the US and the rest of the common law world when we renamed “discovery” to “disclosure”. Now the whole Special Relationship has apparently died. US-UK cooperation on discovery/disclosure will survive that.

Inevitably, this column attracts comments from time to time, varying from the sophisticated to the obscene (Tom Lehrer once suggested that these two terms were interchangeable to a New York audience). One of the more thoughtful ones recently read simply as follows:

It’s bl00dy “disclosure” you dinosaur

My correspondent is, of course, correct in his succinct observation. Since 1999, Part 31 of the Civil Procedure Rules for England and Wales has referred to the identification and exchange of documents as “disclosure” where every other common law jurisdiction refers to “discovery” and, by extension, to electronic discovery or e-discovery or ediscovery (I draw attention to the difference between the presence or absence of that hyphen because, although Google treats the two terms as more or less the same, Twitter, annoyingly, sees them as different).

International fame for Anglo-Saxon

My dog Saxon has adjusted well to the fame which comes from a mention in Gabe’s Guide.   I referred to him in a post a few days ago and, before I knew it, the world’s press (well, Gabe anyway) blew this up into an assertion that I become more like Saxon every day.

At one level, this is a compliment. The traditional Labrador characteristics of straightforwardness and being pleased to see people are ones I am happy to identify with, as are Saxon’s good looks. I can cope with Wikipedia’s description of the breed as “well-balanced, friendly and versatile …. adaptable to a wide range of functions…highly intelligent and capable of intense single-mindedness and focus if motivated or their interest is caught…with a good work ethic and generally good temperament”.

On the other hand, if you find me chewing bones under the piano or trying to eat all the cow-pats on the Meadow, you will no doubt suggest that retirement beckons.

One could pick up various e-discovery parallels here. Labradors are designed to retrieve what you really want, and nothing else. Bringing back the right duck out of the marsh is akin to fetching the right document set from the morass in which the clients put it. A “chain of custody” has a dual ring to it. The trail which Saxon leaves up the hall carpet is less “audit” than “into orbit” if my wife sees it.

There is another connection. The English think of Labradors as the quintessestially English dog, when in fact they come from North America. Similarly, North Americans think that they invented discovery.

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How was ILTA for you?

There are two halves to the question “How was ILTA for you?”. One is the personal reaction. Did I learn something and see some interesting technology? Did I meet interesting people? Did I have fun? The answer to all these questions is Yes, as I expected. The more serious question concerns the state of the industry, by which I mean the lawyers who are involved in e-discovery for litigation and regulation and their clients as well as those who provide software and services to them. Let’s take the easy bit first.

I am luckier than most at ILTA. I have no responsibilities apart from talking to pleasant people about a subject in which I am interested. I have no stands to put up and man; I do not have to do any hard selling or make any buying decisions; such formal meetings as I have are a pleasure rather than a burden; I do not have projects running back in the office and anxious clients to keep contact with; I have no staff to be responsible for nor is anyone responsible for me. My sole “duty” is to see people I know and like, to meet people I do not know, and to write about some of it afterwards.

On that basis, I am easily pleased. The venue was just fine, the organisation impeccable, the sessions and booths interesting, and I was in conversation with agreeable people from arrival to departure except when I chose to sit quietly writing. A lawyer from the US, the UK, or anywhere else where documents are collected for civil proceedings could have informed him or herself at any level – those new to the subject get a gentle immersion which they can take at their own pace, whether in sessions, by going round the stands or by just talking to others; those who want a higher level of learning, technology or discussion can easily find it.

Thucydides joins Plato on classic e-discovery panel

In the last few days, both Ralph Losey and I have invoked Plato as an expert with something to say about e-discovery. Now Thucydides joins in.

One of the pleasures of reading the Times is that there is an inexhaustible supply of people able to supply missing detail from their own recollections. You get examples like “Your otherwise excellent obituary is quite wrong in asserting that the late Buffy Henderson won his VC facing enemy fire from the right at Salerno. It came from the left. I should know – I was standing on that side of him”, and similar personal recollections of pedagogues, thespians, politicians or cricketers of yore. It keeps the newspapers’ fact-checkers on their toes and, as Pooh Bah said in The Mikado, is corroborative detail, intended to give artistic verisimilitude to an otherwise bald and uninteresting narrative.

I can generally spot a cross-reference at 1,000 paces, but I missed one when reporting a few days ago that David Cowen had said at ILTA that ” history repeats itself”. He may well have done, says the learned Jonathan Maas, but Thucydides said it first. You have got to like working in a market where people send you e-mails like that, especially when recent articles by Ralph Losey and by me have drawn on Plato for inspiration.

I haven’t got time for this, you say. There is more than enough hard news and analysis around without you dragging up dead philosophers, historians and Buffy Henderson. Maybe, but the Twitter feeds today are divided equally between the EMC / Kazeon story  and the Organisation of Legal Professionals certification initiative which between them have flooded the network and lose their appeal after the first thirty or so references. Thucydides is similarly only interesting once, but I think it unlikely that anyone else will bring him into it.

Judicial College gives hope of e-disclosure training

Today’s Times reports on the launch of a new Judicial College which will give judges the opportunity to top up their skills and keep up to date with developments in the law, practice and procedure. The Lord Chief Justice, Lord Judge, introducing the new scheme, makes the point that judges work alone and that “one judge very rarely sees how another judge sets about his or her work”.

The prospectus for the new college will be published next week. It will be interesting to see if case management, and in particular the handling of electronic disclosure, will feature in the prospectus as a stand alone topic.

Disclosure is one of the biggest components in a civil litigation case. Its costs have grown in proportion to the volume of documents which exist, and out of all proportion to the sums at issue. Judicial control of electronic disclosure or, rather, the lack of control, was highlighted in a report by KPMG in October 2007. Many of those who made representations to Lord Justice Jackson’s Civil Litigation Costs Review emphasised the importance of helping the judges with this, and he so recorded in Part 8 of his Preliminary Report (see pages 381 and 382).

Divided by a common language

Matters of mutual incomprehension can pass unnoticed. In the context which concerns me, for example,  English and American participants in e-discovery can fail to realise that one is talking about chalk and the other of cheese.

For example, American lawyers and litigation software are all geared around whether  documents are “responsive” or not. That seems the obvious word to use to refer to documents which are “in” as opposed to “out”. But the importance of responsiveness follows from an aspect of US discovery which is very different to that which obtains in the UK – under the US rules, discovery is given of documents which “respond to” a request from opponents. English disclosure does not work like that – each party self-starts on its disclosure, at least for the standard disclosure which initiates the process. The concept of being “responsive” is therefore meaningless save in the broader sense of finding a “response” to one’s own search.

The gap exists not so much because one is using terminology which the other does not understand, but that neither appreciates that the terminological difference exists at all. You can miss each other in the dark like that, whether talking of discovery or international politics.

At least everyone in America has now heard of Scotland

One of the reasons I go to American conferences is to fly the British flag as serious players in the electronic disclosure world, and to answer questions about it. The Civil Procedure Rules apply only in England and Wales. The only thing anyone in Washington wanted to talk about was Scotland.

It would be easy, staying here in the UK, to underestimate the level of American anger at the decision by Scottish Justice Minister Kenny MacAskill to release the Libyan terrorist Al-Megrahi who was convicted of playing a part in the downing of Pan Am Flight 103 in December 1988. One becomes cynical of government-level complaints designed to look populist at home and to safeguard contracts or diplomatic relations abroad. Nevertheless, it was interesting to realise what very strong feelings run amongst ordinary people in America about the decision to release Megrahi.

One of the issues is that Americans, understandably, find it hard to distinguish between the component parts of Europe, let alone the United Kingdom. They lump the UK in with Europe, for a start, believing that we are part of it; they are puzzled to discover that there is a mismatch between the political and the cultural, and that Britain does not feel part of Europe in  most senses. This is part of a long tradition: Lord Raglan, commander-in-chief of the British Army in the Crimea in the 1850s, persisted in referring to the enemy as “the French”, notwithstanding that we and France had not been at war since Waterloo in 1815 and that the French were actually our allies in the Crimea.

Why not just read a few eDiscovery cases?

An hour or so after I posted my blog entry eDiscovery certification bars new entrants arguing  against the apparatus of exams and certificates for in-house staff, a new post appears headed The Critical Need for eDiscovery Certification followed closely by another post apparently based on the same press release. It is not a riposte to mine but a fortunate coincidence – I stress the word “fortunate” because, as I acknowledge in my article, this is definitely an area for debate. Chere Estrin, the author of the article, refers (as I did last week) to Socha-Gelbmann’s observations on the shortage of expertise in the market. All the more reason, says I, for opening the doors wide, leaving it to employers to choose the right people, and to direct them to external resources where they can improve their skills.

Chere Estrin takes the opposite view and points us to the Organisation of Legal Professionals which “has been formed for the purpose of providing an exacting and tough certification exam to establish core competencies”. Some of the names on the list of governors of the OLP are people I know or know of, are experts worth listening to, and are interested in the future of the profession.