Happy New Year

Trees on Port Meadow, Oxford on Christmas Day 2009

Happy Christmas

Port Meadow, Oxford in Winter

Photograph by Chris Dale

Letter in the Times about destruction of ESI

Amongst my predictions for 2010, published on the website of the Society for Computers & Law on 21 December, was this one:

Another side-effect of the Earles judgment will be a debate as to what the law of preservation and spoliation actually is in England and Wales. The focus will be on deciding at what point a party might reasonably have anticipated litigation.

This prediction has started to come good before the year is out, with the publication in today’s Times of a letter headed Data Destruction from Peter Hibbert, Associate Professor at the College of Law in Birmingham. He refers back to Grania Langdon-Down’s article of 17 December E-disclosure: how good is your filing system? which I wrote about on the same day.

The e-Disclosure Information Project in 2009 and 2010

My e-Disclosure predictions for 2010 are up on the website of the Society for Computers and Law. I have not checked back to my previous years’ SCL predictions, but I think that this batch have much more, and much better-grounded, optimism in them than was the case in previous years.

I will come back in a moment to my own ambitions for 2010, but it is worth first having a quick review of 2009. I wrote about 250 blog posts during the year, bringing the total to 489. There is no easy way of calculating the word-count, but that would add up to a fair-sized book. I was a speaker, panelist or chairman at 12 public conferences in 2009 and attended others. Venues included the US more than once, Brussels, Sydney and Singapore as well as the UK. I got involved in a couple of cases at a strategy level (that has not been the priority for the last couple of years). The rest of the time was spent in meetings or talking about e-Discovery / e-Disclosure in restaurants or bars.

Gartner, Hong Kong and civil servants inspire reader comments

Recent comments from readers cover the Gartner report on the litigation software market, the state of play in Hong Kong, and the bright light which has suddenly been shone on the need for government departments to approach electronic disclosure in the same way as a large law firm or company would approach it.

From time to time a reader drops me a line suggesting that  something I have said is ambiguous or unclear, or that I have left something out. The omissions are often deliberate – not by way of censorship, but because I am anxious both that I should get to the end of writing the post and that you should finish reading it. These signs that people are bothered enough to write in are extremely welcome. I had three last week, and they are all worth passing on.

Times E-Disclosure article leads with Baby P photocopier excuse

The article on E-Disclosure in today’s Times E-disclosure: how good is your filing system? by Grania Langdon-Down leads with the extraordinary “lost in the photocopier” excuse given by Ofsted as they gave late disclosure of 2,000 pages of documents in Sharon Shoesmith’s judicial review case.

I was interviewed for the article some time ago when the lead subject was HHJ Simon Brown QC’s judgment in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009). I wrote about the Ofsted shambles on Tuesday (The Baby P case may be the disclosure story of the year) and Grania Langdon-Down rang me 20 minutes later, without having seen my post but having reached the same conclusion as to the significance of the Ofsted story.

Gartner points to non-US E-Discovery market growth

Gartner predicts an eDiscovery software market worth $1.2 billion in 2010. More than 10% of that will be outside the US. Software suppliers may be ready to run with this, but where are the skilled people?

Gartner’s report of 16 December E-Discovery Software Marketplace is Set to Continue High-Growth Pace has inevitably interested the Twitterati today. Picture Shackleton glimpsing the South Georgia whaling station after his epic journey from Elephant Island; imagine a French Legionnaire seeing an oasis, a besieged wagon train catching the sound of the 7th Cavalry bugle or the defenders of Lucknow hearing Campbell’s relief column battling to lift the siege (I could go on for pages like this, but you get the picture – the end appears to be in sight).

Gartner foresees that worldwide eDiscovery software revenues will reach $1.2 billion in 2010, an increase of 23% over 2009. They point to “unplanned events” such as “litigation regarding bribery and corruption, foreign corrupt practices, securities and financial fraud, government contracting abuses, and healthcare fraud” as the main drivers for the growth which will, they say, bring market and technology consolidation, expansion of product and services portfolios and new customer bases. I have not read the report itself, but one can probably take it for granted that these conclusions are underpinned by Gartner’s usual research and analysis.

Kind words from the Posse List eDiscovery Reading Room

If a supplier asked me what to do if it received unsolicited praise from a respected source, I would tell them to stick it up on their web site. What is the proper reaction when someone says nice things about me?

My own shy and retiring nature is at odds with my role as cheer-leader for the e-Disclosure / eDiscovery industry and its players. This very English reserve extends to my own articles: Google alerts for, say “eDiscovery”, pick them up, sometimes within minutes, but I have usually by then moved on to something else. I see the heading and think “that looks interesting”, only to realise that it is my own. It is, of course, unsurprising that I should be interested in the topic about which I write several thousand words a week, but I ought to be able to recognise my own articles.

An alert turned up a few days ago about a blog: “… incisive and trenchant showing a penetration to the heart of a subject with clear, sharp, and vigorous expression”. Wow, I thought. I wouldn’t mind that as my epitaph – only to discover that the extract was in fact about me.

Legal Technology Awards 2009

The Legal Technology Awards list is out. The number of categories, providers and products may seem bewildering, but their web sites give a good idea of what they do. Follow some links and see what maps to the problems which your firm or company faces.

The Legal Technology Awards come in two waves, the juried awards (broadly for individuals, law firm departments, inspired uses of technology and so on) and the vendor categories which are voted for by those who use them. There are about 33 categories and up to three awards in each of the vendor categories. I will not list them all because Monica Bay has already done that here for the juried awards and here for the vendor awards.

451 Group reports on IQPC in New York

I was not at IQPC’s E-discovery conference in New York last week (see IQPC New York – minimizing risks, costs and challenges). Fortunately the 451 Group’s Katey Wood was there and her report is here.

Two of the points which caught Katey Wood’s eye are of particular interest. One is the session in which Deborah Baron of Autonomy interviewed Karla Wehbe of Bechtel. My article had made the point that client case studies are only interesting if they recount triumph over difficulties. This one seems to have done just that, with sceptical external lawyers now apparently onside and (a much overlooked benefit of in-house control) a proportion of reviewed documents now reusable. My spies tell me that this session was well received – not surprising, perhaps, given the article’s conclusion about “the shifting of roles between e-discovery vendors, service providers, general counsel and law firms as technology moves in-house”.

The other point of interest springs from Katey Wood’s account of the session about collection of international ESI, whose speakers included the well-regarded Denise Backhouse of Morgan Lewis. The sentence about the EU’s fundamental human right to privacy being “literally a foreign concept to those of us accustomed to living under the Patriot Act” is a good way of illustrating how much there is to do to convey to US lawyers that language is not the only thing which is foreign once you cross the Atlantic. Privacy laws and data protection need more than a check-list, as the article says. It would be a good start, however, if the subject did at least appear on the check-lists of those who need to collect data from Europe.

I have yet to see a report about the large judges’ panel at this conference. I will pass it on when I find out what was covered.

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Legal Inc publishes 5th podcast and Earles article

Litigation support provider Legal Inc has now published the fifth in the series of podcasts which I recorded with Lisa Burton. This one covers the software and systems available in the market. The series can be found here.

Legal Inc has also published a briefing paper which I wrote called Earles: Focusing the mind on edisclosure obligations about the implications of Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile). The message is in the last few words – before asserting that finding and handling electronic documents is too expensive, the lawyers need to find out what the costs will be.

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The Baby P case may be the disclosure story of the year

It begins to look as if the Baby P case will beat even Earles v Barclays Bank in terms of its long-term influence on disclosure, not least for the likely focus on individual failings. Is this cock-up or conspiracy? Why were documents being photocopied anyway? How about a forensic examination of Ofsted’s computers, even at this late stage?

There are so many discovery cases in the US that there is usually a “Top 10″ list, identifying those which were the most important. In the UK, only one or two cases will reach prominence in any year. Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile)  was a relatively straightforward commercial case in which the defendant bank failed to produce documents relevant to the central issue. The disclosure point centred around an unsupported contention that it was disproportionate to search for the documents in question. The judge punished them in costs but expressly ruled out ill intent as a motive.

The Baby P case adds several dimensions – a political element, late disclosure of a significant quantity of documents, a formal report apparently rewritten to improve a case, an implausible explanation for the deficiencies, and now the suggestion that the threat of litigation was met with a memo urging the destruction of certain documents. The combination of political interference, apparent bad faith and inherent incompetence makes for a story with the full force of the best (that is, the worst) of the US ones. Almost everyone involved, apart from the lawyers, is inherently dislikeable individually and as a class, but that must not distract from the messages about justice, not least because justice was the first victim here from the moment the original story broke.

Irish Law Reform Commission consultation paper on Documentary and Electronic Evidence

The Irish Law Reform Commission has just issued a consultation paper on Documentary and Electronic Evidence. At 313 pages, it is not going to be a quick read and I have done no more than skim it so far.

Its ambit is extremely wide, embracing civil and criminal proceedings, the definition of a document, the rules of evidence, public records, business books and documents, admissibility and authentication. It sweeps up on the way subjects like retention of documents and anticipated legal proceedings, money-laundering, e-signatures and cross-jurisdictional issues, and does so by reference to a variety of foreign laws, rules and practices as well as the existing domestic framework.

It looks learned and authoritative without being dull, and I will go through it in due course. You may like to see it now. I have a feeling that Ireland will be faster off the mark than Scotland (see Scottish Civil Costs Review – a missed opportunity) in embracing electronic disclosure in civil proceedings. If so, I would be keen to be involved.

Thanks to @richards1000 and IntegreonEDD whose Tweets tipped me off about this.

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UK interest in outsourcing on the rise

A Tweet earlier this week asks “Weekly LPO articles in the UK?” which, extended from its native (and necessarily abbreviated) Tweet-speak, means “Are we seeing at least one article a week about legal process outsourcing in the UK?”

The question was triggered by an article in Legal Week headed Pass it on which looks at the growth of interest in outsourcing. What is being passed on (thus giving the article its title) is some part of a legal process which cannot be done cost-effectively by the law firm with conduct of the matter or by the client directly. The article covers more than the litigation work which is the main focus of my interest. It also embraces more than sending the work beyond the seas, pointing out (as I have more than once) that the principles of outsourcing apply to any task which can be done more cost-effectively (which may also mean “more cheaply”) in other hands; those hands may be round the corner, at least when compared with Mumbai.

New website for Local Government Lawyers brings commercial awareness to public sector litigation

A new website for local government lawyers has appeared. Given the very wide range of legal issues which affect local authorities, it is perhaps surprising that we have not seen one before. Local authority insulation from the real world will not help them in the civil courts.

I came across the site Local Government Lawyer because it republished an article of mine about Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009) with the title The cost of non-compliance. Everything said in that judgment about large organisations, such as the defendant bank in that case, applies equally to litigation brought by or against local authorities – they deal with many people, have a host of statutory powers and duties which generate a lot of documents, and a large internal client base which differs from a bank’s only in that the background and experience of the people involved insulates them from the rigours of the commercial world.

Orange Rag: Scottish Civil Costs Review – a missed opportunity

John Craske, Head of Business IT at Dundas & Wilson LLP has contributed a guest article to the Orange Rag which hints at disappointment in the Scottish Civil Courts Review.

I wrote briefly about the Report of the Scottish Civil Courts Review on 7 October, shortly after its publication (see Scottish Civil Courts Review), and promised further comment in due course.  I drafted an article about one aspect which interested me – the role of the courts in mediation, on which the Report and I come down on the same side in what has become known as the Woolf v Genn debate – but somehow never quite got back to it.

This was, I think, because there was disappointingly little in the Report about either the use of court technology or about electronic discovery. The report acknowledged the need for better case management, but my overriding feeling, without reading the chunky second part in detail, was that technology, whether of courts or in the hands of parties, had been ducked, with a few laudable statements as to how important it might all prove one day.

IQPC New York – minimizing risks, costs and challenges

Minimizing risks, costs and challenges is the title of the IQPC eDiscovery conference taking place in New York from 7 to 9 December 2009. I will not be there, but the agenda offers more opportunities than its title suggests.

I would have gone, for example, to the Judicial Perspectives panel which Patrick Burke of Guidance Software is moderating, with no fewer than six US Magistrate Judges. At the top of the six bullet points which form the agenda is Sedona Cooperation Proclamation – should lawyers cooperate with each other? It would be interesting, would it not, to get a glimpse now of the six hot topics for the agendas for, say, December 2012 or (which is more feasible) to look at old topic listings and compare and contrast them with today’s. When did “co-operation” first make an appearance on the agendas? Patrick is good at spotting what is coming next and, if my own experience on his panels is a guide, will make good use of his army of panellists.

PivotalDiscovery e-Disclosure video with HHJ Simon Brown QC

As a proponent of video as a means of conveying messages, it is remiss of me not to have drawn your attention to one which features His Honour Judge Simon Brown QC and me. It was made by Kina Kim of PivotalDiscovery.com at the Masters conference and is included in the ever-growing list of short videos which PivotalDiscovery.com is collecting. You can see it on the PivotalDiscovery site or on YouTube.

There is no room for artifice in a Kina Kim production. This is the second one I have done for her (see Big Reception for Marean-Dale video) and the approach this time was the same as at ILTA. With little warning and no time for preparation, you are hauled off to a corner and away you go. It makes for spontaneity, if nothing else, and is infinitely preferable to the painful preparations which one must make if given notice.

Georgetown Law: to Insource or to Outsource by George Rudoy

Outsourcing part of the disclosure / discovery process has suddenly attracted attention in the UK. Some think that this is due to the instincts in common between lawyers and the poor old lemmings, who are invoked as role models whenever more than two people or organisations move in the same direction simultaneously.

I am not sure that this correctly describes the motivation. It seems unlikely that the widely-publicised moves by Pinsent Masons and Simmons & Simmons are solely responsible for an increased interest in the idea that some work can be done just as well but much more cheaply by others. I suspect that many firms have been considering the possibility of sending out such work to India or South Africa for some time, and that they are influenced by wider matters than the example of two particular firms.

How IT can support judicial reform? asks Dutch judge Dory Reiling

How many judges do you know who might write a PhD thesis with the title Technology for Justice: How Information Technology Can Support Judicial Reform, discuss it on her blog, and promise to inform you of its publication by Twitter. Not many, I suspect.

I met Dory Reiling, or Abeline Dorothea Reiling, Vice President of the Amsterdam District Court, to give her full name and rank, when we sat together on a panel moderated by Patrick Burke of Guidance Software at IQPC’s eDisclosure conference in Brussels at the end of September. I wrote about the session in my post Information Retention at e-Disclosure conference in Brussels.

UK Information Commissioner publishes plain English data protection guide

The UK Information Commissioner’s Office (ICO) has produced a guide in plain English which aims to make it easier for the non-expert to understand what is involved. That is all to the good, but this is not one of these situations where tout comprendre c’est tout pardonner.

I thought you wouldn’t mind a bit of French in the circumstances. Those trying to get data from France (or anywhere else in the EU, but France more than most) for use in US proceedings rarely forgive what they learn about the restrictive nature of EU data protection, even when they understand it – perhaps especially when they understand it. Indeed, the expression “Pardon my French”, used by the English to exculpate themselves after using some vile swear word, might well be helpful to those who have just discovered what those implications are – the language which results is often unsuitable for what used to be called “mixed company”.

e-Disclosure conference thoughts from the 451 Group

Although I do my own summaries of the conferences I take part in, it is more interesting in some ways to see what other people take away from them. A succinct summary from an interested party who was present as a delegate picks out what came across as the important strands – if you are organsing and chairing it, the whole thing is important.

Nick Patience from the independent technology-industry analyst company The 451 Group has done a post called e-Discovery conference thoughts in which he highlights a few points from the recent Thomson Reuters e-Disclosure Forum which struck him as being interesting, important or both. I would in turn pick out a couple of those for closer focus.