What is the seating etiquette if you go to a wedding knowing both parties? Do you have to make an invidious choice between one side of the church and the other? Perhaps you sit in the aisle or hang from the rafters.
I was set musing on this by the announcement that two of the sponsors of the e-Disclosure Information Project, Anacomp and 7Safe, have announced a new strategic alliance. Under the terms of the agreement, 7Safe provide the hosted version of Anacomp’s review application CaseLogistix, and will serve as a preferred provider of data processing and other e-disclosure services in the UK as an Anacomp Connected Partner Program Certified Services Provider. The press releases (7Safe’s here and Anacomp’s here) are necessarily in similar terms. Read the rest of this entry »
You may just have been indulging my paternal pride, but quite a lot of people seemed to like the first single released by The Phoenix Fall, the Leeds-based Indie band whose drummer is my son Charlie Dale.
The second single, Tearing Me Apart, was released this week when the Phoenix Fall headlined a gig at The Library in Leeds. My wife and I were there, used by now to being the oldest in the room by 30 years or so. Watch the video here:
Wearing my marketing hat, full marks to Ashley Karrell who made the video. Any of you minded to take up my suggestion that YouTube videos are a good way to promote business may care to get in touch with him. And you know where to look for a band for your Christmas parties.
I was able to use the title of the first single, What Really Matters to Me as an object lesson in what e-Disclosure / eDiscovery is all about. It tied in neatly with something HHJ Simon Brown QC once said about the purpose of disclosure:
What I want to know is this: what is the case about? Which of the pleaded issues really matter in getting to the heart of the dispute? Can we split the case up and limit disclosure to the subjects which matter, or which matter most?
Even I am pushed to find a useful e-Disclosure parallel for a title like Tearing Me Apart, although if you try explaining to Senior Master Whitaker that the Part 31.6 CPR definition of a “disclosable document” is the same as the pre-1999 concept of a “relevant document” you might fear momentarily that being torn apart would be a relatively painless fate.
Anyway, there is no point in having an audience which stretches from Melbourne to Manhattan and not use it to support the band. After all, they might support me one day.
On which subject, you can download Tearing Me Apart from Amazon or iTunes.
Planning is in hand for IQPC’s May 2010 E-Disclosure conference. Good conferences like this provide elements which other forms of information delivery lack, not least the opportunity to interact with those whose data we write and talk about.
Having got shot of my last urgent deadline a few minutes before midnight on Monday, you would think I deserved a day or two in peace to catch up, but no – duty calls. Just to show how tough life is here, I was forced to spend part of yesterday in a smart restaurant in South Kensington with three agreeable young ladies.
The ladies in question were the team from IQPC responsible for planning IQPC’s Information Retention and E-Disclosure Management Conference for next May – Vanessa Lovatt, Katie Judd and Sarah Johnson. I enjoyed all the conferences I did last year (yes, I have lost count, too) but IQPC was simultaneously the most important and the most enjoyable. It is the biggest one on home territory, it attracts a corporate audience and, last year, it was the venue for the UK-US judicial panel with Guidance Software (since repeated in Washington), and for the performance of the mock e-Disclosure application which I wrote. I am on its advisory board and so get involved in its forward planning – we actually started this at IQPC’s Brussels conference in October but, since that was at 2.30 in the morning and none of us took any notes, it seemed prudent to have a slightly more formal session. Read the rest of this entry »
Read KPMG’s new survey on corporate readiness for litigation and then read the judgment in Earles v Barclays Bank. You may spot a connection.
KPMG have published the results of the survey which Alex Dunstan-Lee previewed for us at IQPC’s Brussels conference in October. One of my reports of that event summarised what Alex said. Another of my articles ended thus:
Perhaps the biggest paradox, however, lies in the disparity between the number of people who accept that information management is important and the number who are actually doing anything about it. Coming to a conference like this would be a good start.
That is more or less the theme of KPMG’s report. It is called Is the legal department ready? Managing electronic data for litigation and regulatory readiness. Read the rest of this entry »
On 20 November 2009, Australia’s e.law completed its acquisition of the business assets of CCH Workflow Solutions from Wolters Kluwer.
The news of the acquisition broke whilst I was between conferences and although I heard from both Allison Stanfield at e.law and from Scott Gillard at CCH Workflow Solutions, I have not really had the chance to catch up with the full implications for the merged business, for their clients and for the Australian e-Discovery market. Read the rest of this entry »
The general reaction to ALM’s Virtual LegalTech by its participants and delegates seems generally to be positive. If, as Charles Christian said on Twitter afterwards, it had a 1990s feel to it, well, that can doubtless be improved upon in future years. Christian is right also to say that opportunities were missed to make use of multimedia in the presentations, particularly as to the technology itself. Some of the ideas which I have scouted on this site for video presentations of technology solutions might easily have been slotted into the framework. This is all capable of remedy in future presentations. ALM bit off quite enough for a first go at this. Read the rest of this entry »
The second session at the Thomson Reuters Fifth Annual e-Disclosure Forum in London on 13 November was called Parallel and cross-border developments in handling electronically stored information. I was the moderator, although if Air Miles were the qualification for talking about international subjects, Browning Marean of DLA outstrips even me by a wide margin.
The panel comprised Senior Master Whitaker, Mark Surguy of Pinsent Masons in Birmingham, and Josh Ellis, Chief Information Officer at the Serious Fraud Office. I suspect that Master Whitaker has a wider range of knowledge on international case management matters than any other judge in the world; I opened by saying that, in the last six weeks, I have been in Brussels, Washington, Singapore, and in front of the UK Civil Procedure Rule Committee and the only other person present on all these occasions was Master Whitaker. In addition he is, as Senior Master, the channel through which requests under the Hague Convention are made. Mark Surguy was the only practicing commercial lawyer from the UK at LegalTech in New York this year. Josh Ellis, quite apart from his present role at the SFO, was responsible for international collections at PricewaterhouseCoopers for years and was thus able to bring a practical and hands on dimension to the discussion. Read the rest of this entry »
Virtual LegalTech looks quite fun so far. It has an exhibit hall, an auditorium and a resource centre amongst other things, and there are people to chat to (Peggy Wechsler of ILTA was on the phone when I dropped by but I will go back later).
It is the only conference at which I am allowed to smoke – even during my own session, which is later on – 7.00pm GMT – when Michelle Mahoney, George Rudoy, Christopher Byrne and I can be heard on the subject of International E-Discovery. One or two of us will there to answer questions afterwards.
Being virtual, it can be attended from my desk, which is a distinct plus.
I have one tip for those attending – use the top bar for navigation between the areas and do not keep going back to the home page. One thing you don’t get at real LegalTech, mercifully, is Henry Dicker standing in the lobby saying “Hey! You made it!” every time you pass by. Henry is a nice chap, but there will be queue of people ready to murder him by the end of the day without that tip, since a video of him strikes up every time you reach the virtual equivalent of the lobby. So the only thing which jars about Virtual LegalTech is the one thing which is not a facsimile of real life. There is a moral there somewhere.
The second point is summarised as Lawyers can no longer plead ignorance about e-discovery technology. The problem is actually more fundamental than ignorance of the technology – getting to know the rules and the case-law would be a good start, at least to the extent of having a mental flag which pops up when the case in hand has any volume of electronic documents. As the article says, there are plenty of good solutions providers out there, easily found and ready to help – if it is negligence not to know the rules, it is no less so to be unaware of the solutions. I prefer the more positive view that there is work to be won by alliances with someone who can do well the parts you cannot do cost-effectively for yourself. Read the rest of this entry »
Every interest group now has a day in the calendar dedicated to raising awareness about it. It used to be just Christmas, Easter and various saints. Then we got “Mothers Day”, and after that a flood. If there is not a Knit-your-own-organic-whale day, there surely soon will be.
19 November seems to be international cross-border webinar day, with at least three broadcasts today. Read the rest of this entry »
Regular readers will know that I find Equivio’s value proposition to be extremely attractive, notwithstanding that the user – the lawyer or his client – does not always get to see it directly. That is because Equivio’s products are bought by service providers and software developers and incorporated seamlessly into their own products. The clients might ask for Equivio’s near-deduping and e-mailing thread processes to be used, and see only the result, not the legs working. Alternatively, the processes may be so closely integrated into the review application that they appear as just another function of that application.
Equivio have followed their applications for identifying and handling near-duplicates and e-mail threads with a product called Equivio->Relevance. I have mentioned it before and I am not going to say much about it here, because I am writing a white paper about it and do not want to steal my own thunder. Put as briefly as possible, Equivio->Relevance hands a small batch of documents to a human reviewer who marks them for relevance. The next batch takes account of the relevance decisions already made, and is further refined by the human reviewer’s input into them. This process continues until the application announces that it “knows” enough to mark the remaining documents (that is, the vast majority) in accordance with the decisions made about the samples. Read the rest of this entry »
I am very pleased to welcome electronic discovery software company Stratify as a sponsor of the e-Disclosure Information Project. Their addition to the list of sponsors coincides with the opening of their London office and data centre, as well as Stephen Whetstone’s welcome appearance as a panellist at the Thomson Reuters conference last week.
Stratify is a subsidiary of Iron Mountain, Inc., the information protection and storage services giant. Iron Mountain has long-standing facilities and clients in the UK and EU (see the Iron Mountain UK site) as well as elsewhere in the world. There is no technical reason why the data must be close at hand, but EU clients want not only to have personal contact with their discovery suppliers but must be able to house their data within the EU for data protection and privacy reasons. Iron Mountain’s storage and data security infrastructure and experience will be comforting factors. The Iron Mountain press release sets out the business proposition for potential clients. Read the rest of this entry »
The first session at the Thomson Reuters e-Disclosure Conference in London last week was called The Continuing Challenges of Preservation, Collection and Exchange. George Socha’s panel included a solicitor, a software provider and a judge – Matthew Davis of Lovells, Stephen Whetstone of Stratify and HHJ Simon Brown QC.
Judge Brown said that the court is interested in the material, and only the material, needed for a decision. The point at issue in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009), on which he recently gave judgment, was not a difficult one. The judge is the end user of the disclosure process and needs contemporaneous documents. He had been given many documents which were not relevant to the issues which he had to decide, but not the ones which actually mattered. Witness statements drawn up by lawyers are often not worth the paper they are written on relative to the contemporaneous documents, in this case the records of telephone conversations. Read the rest of this entry »
The Thomson Reuters Fifth eDisclosure Forum was sponsored by Autonomy, Stratify and Legastat and, as before, the co-chairs were Browning Marean, George Socha and me. I enjoyed it and, unless they were just being polite, the audience seemed to think it a valuable day. The session reports will follow; this summary gives you the flavour of the day and suggests how to follow it up.
Asked why we had left the key subject of search until the last session, I said that we were sufficiently confident of keeping most of the audience until the end that we wanted to go out on a high. So it proved, even on a wet and windy Friday the 13th several miles east of the back end of beyond at Canary Wharf. This is the one conference which the co-chairs get to design from the beginning, and I do not recall that we paid much attention to the sequence. All the topics were significant. Read the rest of this entry »
I went to listen to Senior Master Whitaker speak last night to the London Solicitors Litigation Association about electronic disclosure. I was not expecting to hear much that was new to me – I have heard him speak five times in four countries in three continents in the last six weeks, so the anticipation of novelty was not why I flogged up to London. I go to anything I hear about where lawyers assemble with an interest in electronic disclosure.
It has to be said that, for a group which self-selected on this basis, the level of basic knowledge was not high. Although most claimed to know the difference between the pre-1999 Peruvian Guano test of “relevance” and the CPR definition of a disclosable document (one which is supportive of or adverse to the case of the giver or any other party), few knew of the co-operation and discussion requirements in section 2A of the Practice Direction to Part 31 CPR. Fewer had heard of Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2008] EWHC 2522 (Ch) (23 October 2008)
or last month’s judgment in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009) or knew of Lord Justice Jacobs’ thoughtful encapsulation of the problems in Nichia Corp v Argos Ltd [2007] EWCA Civ 741 (19 July 2007). Read the rest of this entry »
An article in Legal Week reports that law firms are aware that existing methods of charging for work must change but says that they are wary of legal process outsourcing as the answer. The only mistake is not to weigh up the options – before the clients do it for you.
In case you have time only to read the first paragraph or two of this, let me pass on a quotation which appears at the end of Legal Week’s article Partners seek new models but wary of LPOs. It comes from Berwin Leighton Paisner partner Vanessa Barnett who is reported as saying:
Long gone are the days of paying for all types of work by the hour and all the hours being under the same roof regardless of the nature of the task. There will only be one ‘profession’ left doing that. Read the rest of this entry »
The latest edition of Charles Christian’s American Legal Technology Insider has been released, bringing its usual colour to the bare recitals one gets in press releases.
Although Charles Christian and I may appear to have a fair amount in common – both English, both lawyers who write about legal technology, both willing to be acerbic where that seems justified (“edgy” is the word somebody used of me this week, whereas Charles seems to favour “grumpy and opinionated” as his own label) – we are in fact different people with different subject areas. I say this because a press release this week credited me with being the editor of the American Legal Technology Insider and the Orange Rag blog.
We each got our respective rebuttals in within seconds. Charles was concerned either that he had inadvertently agreed to sell his stable (in which case he wanted a cheque by return) or that he had unwittingly committed himself to making a speech about the minutiae of the Practice Direction to Part 31 CPR; I was equally concerned that I might find myself expected to discuss practice management systems, accounts systems or digital dictation.
The Masters Conference yesterday published the list of those in its Cabinet. New members include Shawnna Childress of LECG and me – if one is going to join a committee, then one which includes the co-founder of Women in eDiscovery and joint author of eDiscovery Plain and Simple is the one to be on.
Conference organisers are increasingly involving their participants and others in shaping the strategy and agenda for forthcoming events – I am spending a lot of of my time doing this, formally or informally and, whilst it can be hard work, I prefer this to simply poling up and speaking. At a simple level, this does at least ensure that I don’t find my subject overlapping with the one which the audience has just heard, as happened to me once. Read the rest of this entry »
FTI Consulting are presenting a webinar on structured data on Thursday 19 November at 1300 GMT. The subject is perceived by some as too difficult to talk about, but it cannot be ignored.
Elephants have provided a recurring theme throughout this blog. They are large, hard to get your arms around and difficult to describe to someone who is not familiar with them – which makes them the perfect model for the structured databases in which a very high proportion of company information resides.
E-mail, and user files like Word documents and Excel spreadsheets, spring readily to the mind of a lawyer required to disclose “documents”. Sources such as HR and financial databases tend to be overlooked, largely because they usually bear little relationship to the conventional idea of a “document”. Read the rest of this entry »
Litigation services provider Legal Inc has published the first two in a series of ten podcasts about electronic disclosure. They take the form of a dialogue between Legal Inc director Lisa Burton and me, and will between them provide a comprehensive overview of the rules, the practice direction to Part 31 CPR, and cases such as Digicel and Abela. We also discuss practical things such as preparation for case management conferences, the use of external suppliers, best practices, problem areas, global trends and pending developments. Read the rest of this entry »
Although the survey was of US companies only, the results are universal – this is not about FRCP or sanctions but about the expectation that in-house legal teams will achieve the same or more with lower budgets and fewer resources, including the spend on outside lawyers. This is happening everywhere and the conclusions are as valid in countries beyond the US. We have gone way beyond shaving down charging rates and other minor economies, and into fundamental reassessments of what is really necessary to achieve the objective.
The answers inevitably lie in a mixture of process, people and technology. The perfect model, viewed in the abstract, is that companies reserve their external lawyers for the things which they do supremely well, and keep control of as much as possible of the rest by a mixture of in-house teams and technology and by direct relationships with providers of software and services.
The primary target is to cut the cost of review by minimising the amount of data sent to the lawyers – there is much more money to be saved by reducing the lawyer hours than by trimming the charging rates. The newer generations of clustering and visualisation tools are not merely more easily understood and accurate, but deliver results which can be audited and, if necessary, re-run with different parameters. The word “repeatable” means more than being able to validate the results – if the first-pass processes are routinely done in-house, then conclusions reached last time can be re-used when similar ground has to be covered for a different case.
I have written a fair amount about this shift – lawyers must either embrace it and learn to fit into the clients’ processes, or do without the work. It will be good to have some statistical backing for what is known to be happening, and Ari Kaplan’s overview and analysis will, like the results themselves, be relevant beyond the US.
As you might infer from its name, the e-Disclosure Information Project set out with purely national ambitions. England and Wales is the only jurisdiction in the world to give the name e-Disclosure to the process of identifying, preserving, collecting and exchanging documents for litigation. If I had known that two years later I would be speaking in Brussels, Washington and Singapore within three weeks of each other, I would not have picked a name with so narrow a jurisdictional scope.
The wider I cast my net, the more it becomes clear that the jurisdictions which require discovery of documents (principally England and Wales, the US, Canada, Australia, Hong Kong and Singapore) have more similarities than differences in their approaches to the problems and the solutions raised by electronic documents. At one level this is obvious – all of these jurisdictions give pre-eminence to contemporaneous documents as the primary source of evidence, they have all seen a vast growth in volumes of evidence, and there are a limited number of ways in which court rules and procedures could develop to take account of mass documentation in adversarial proceedings in which justice is only accessible if it can be afforded. If you were to describe the problem to someone who, although suitably skilled and intelligent, had no knowledge of the developed law and procedures, you would end up with a solution whose essentials were broadly similar to those which obtain in the jurisdictions which I have named. Read the rest of this entry »
An article in Document Management News reports on the legal action being taken by the European Commission against the UK for gaps in the legislation required to comply with EU data protection laws. The investigation leading to the action was initiated because of failure to control a specific activity – BT’s trial of PHORM, which tracks web user habits and sends targeted advertising based on what the user is apparently interested in.
The UK usually complies slavishly with EU regulations, with civil servants accused of “gold-plating” the Commission’s requirements, adding refinements and extra burdens mainly as cynical job-creation exercises to keep them and their cohorts (and their cohorts’ descendants) in work. Take the dull little men at DEFRA (the Department for Environment, Food and Rural Affairs, historically a kind of dustbin for those not employable in any other government department) and give them a short EU regulation on, say, horse exports or slaughterhouses and they will (after much generously-rewarded labour), produce a law ten times as long and detailed, guaranteed to increase costs, close down businesses and put people out of work. Their own salaries and pensions, of course, are safe (if you search for “gold-plated” in Google, the results are divided between articles about British civil servants amplifying EU directives and articles about the pensions of those same civil servants). Read the rest of this entry »
What connects Father Brown’s deduction that a trusted old soldier had been a villain with Autonomy’s tracing of Jérôme Kerviel’s activities at Société Générale? Both stories involved not just hiding leaves in forests but making a forest in which to hide the leaves. Companies need to get a grip on their data.
The Times has been running a rather good series of supplements on matters relevant to business. Last week’s was on Corporate Fraud, and I and other e-Disclosure commentators were interviewed for an article called Finding a hidden leaf in a forest (page 5) .
The heading is a misquotation. What I actually said in my interview was “Where does a wise man hide a leaf?”. This expression was used by Lord Justice Jacob in Nichia v Argos in his discussion about mass disclosure as opposed to the consideration of documents “with some care to decide whether they should be disclosed”. His paragraph 47 says this:
“…it is the downstream costs caused by the disclosure which so often are so substantial and so pointless. It can even be said, in cases of massive disclosure, that there is a real risk that the really important documents will get overlooked. Where does a wise man hide a leaf?” Read the rest of this entry »
After leaving Oxford, I
qualified as a solicitor in 1980.
I have worked as a consultant
and developer in litigation support since 1993.
My primary focus is on the encouragement of
e-Disclosure by working with the courts and
with suppliers to achieve a joint approach.
Posted by Chris Dale 
