SCL article: e-Disclosure and Legal Practice in the Recovery Position

Computers and Law, the website of the Society for Computers & Law, has kindly republished an article which I wrote following LegalTech 2010.

They have merged that article with the predictions which I made for the SCL at the turn of the year and called the article Trends: e-Disclosure and Legal Practice in the Recovery Position. The fact that the original springboard was a US event did not diminish the article’s relevance to the UK or, indeed, to any other jurisdiction which requires the discovery of documents for litigation. The addition of my 2010 e-disclosure predictions emphasises the UK elements.

The SCL’s choice of words in the title are aptly chosen: the words the recovery position accurately reflects my positive view of likely developments, and the reference to legal practice makes it clear that this is not just a subject for the hands-on litigators, but also for those responsible for developing new business and managing the work when it comes in.

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NatWest online banking goes down – at least I hope it is just the online bit which has gone down

As I write, the whole of NatWest’s online banking system has been down for at least five hours. I know it is not working because I am trying to use it. I know that the problem arose at least five hours ago because the first tweet with the NatWest hash tag #NatWest is timed at five hours ago. One user observed that the only words on his otherwise empty screen were “Helpful Banking”

Of course, it is just a guess that the only casualty is the online banking system. My first assumption was that the problem was at my end and I wasted some time investigating that. Then I began to wonder if, perhaps, the whole bank had gone down. That was the question posed by one tweeter about three hours ago who asked “Have NatWest gone titsup?”.

The many tweets on the subject at least reassure me that the problem is not mine alone. The consensus seems to favour a computing failure rather than a cataclysmic banking failure.

The point, however, is this. Why is NatWest not using all available resources to reassure its customers and keep us informed? It would not be too difficult, I imagine, to put a warning on the home page through which one accesses the logon. It would be even easier if the bank itself used Twitter as a means of communicating – even NHSDirect, one of the most reviled of UK institutions, is brave enough to take part in Twitter discussions.

I observed in a recent article that making use of new media forms is not merely a matter of pushing out one’s own messages. It can be used to track comments made about you, whether positive or adverse and, as this incident shows, it could be engaged as a means of mollifying customers and keeping them informed.

There are three possibilities here. One is that the bank has in fact gone down – that seems unlikely. Another is that they hope no one will notice and that they will get through the last working day of the month (pay-day for many people) without attracting adverse publicity, if only they keep their heads down. The most likely answer is that, for all the millions they spend each year on promotion and reputational management, no one has actually applied their minds to the subject.

PS: A sharp-eyed tweeter has just found an apology for the failure buried in the “Any Questions” section of the NatWest web site. Why didn’t I think of looking there?

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You cannot really complain at a full InBox and lots of tweets

A day in London leaves me with a pile of e-mails and a heap of tweets – all signs of a lively market, and to be welcomed despite the time it will take to catch up. Add a crusading podcast, a decent lunch, and an interesting meeting and it all adds up to a useful day. But, as an aside, why do some businesses go out of their way to alienate their customers?

I blame Twitter myself. I used to be able to go out for a day and keep up, more or less, with the e-mails as they came in, so that I had only to file them on getting home. These days, that stream is supplemented by a near-constant flow of tweets, a high proportion of which carry links to interesting articles. Again, I can usually keep up with that flow as it comes by. The problem today was that my three meetings had gaps between them only just long enough to walk from one to the other. An alarmingly high number of urban road accidents are apparently caused by people dealing with their e-mails and tweets whilst walking and, interesting and important as it all was, I was not prepared to be run over in the cause. The journey home from London to Oxford appeared to take about five minutes, so I presumably slept through it and was very lucky not to end up in Hereford.

The result, now I am home – on my left a screen full of interesting tweets; on my right an Inbox full of e-mails. I am not complaining, you understand; there are plenty of businesses at the moment which warrant no tweet-flow and generate no e-mail traffic. Besides, today’s stream has included, in no particular order, the following: positive reactions to suggestions which I have floated about e-Disclosure road-shows; progress on a proposed supplement in The Times on legal efficiency; a message with “massive congratulations on the ease and value” of my blog; a link to a white paper which looked familiar before I realised that I co-wrote it with 7Safe; interest in sponsoring the Project from a big player in search; a further step forward on the Women in eDiscovery initiative which we are running; a product release by one of my sponsors; an article from Australia headed “e-Discovery and Enhanced Judicial Involvement Come of Age” which is extremely timely; a US article which uses a post of mine as the starting point for reflections on EU privacy; and some re-tweets of an article I published before I set off this morning. That is a lot to follow up, but it is all good stuff. It will have to wait until tomorrow.

Moving forward on all fronts

I am off today to record a podcast for CPDCast about the e-Disclosure components of Lord Justice Jackson’s report. You may recall that I was booked to do this on the day before the Civil Procedure Rule Committee met to discuss our draft Practice Direction and ESI Questionnaire for the third time. I had got as far as sitting in front of the microphone and completing the sound-check when some intuition made me abandon the whole thing. By tomorrow, I said, we will probably know that the practice direction has been accepted by the Rule Committee, and it seems daft to make a recording which will be out of date tomorrow.

Well, as we now know, the Rule Committee felt unable to pass the draft on which we had worked for 18 months and of which Lord Justice Jackson had said

In my view, the substance of this practice direction is excellent and it makes appropriate provision for e-disclosure. On the assumption that this practice direction will be approved in substantially its present form by the Rule Committee, I do not make any recommendation for procedural reform in relation to e-disclosure.

Legal Inc takes Digital Reef

Amongst the many applications at LegalTech which I was invited to look at but could not fit in was Digital Reef, which allows organisations to identify, collect, process, analyse and review data in place. The advantage of this, obviously, is that they need only move or export relevant information.

Digital Reef is not the only player in this space. I was interested, as much as anything, because Charles Lavallée, whom I knew from his time at CT Summation, has moved to Digital Reef and it was his invitation which I was unable to accept.

It looks as if I will get my chance on this side of the Atlantic because  Legal Inc has signed a hosting and reseller agreement with Digital Reef as part of their strategy to provide clients with a case management solution which begins at the client’s own data stores.

I have heard good things of Digital Reef from elsewhere, and if it is good enough for Legal Inc then it is worth looking at. I will do so and report back.

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No need to wait for the eDisclosure Practice Direction and Questionnaire – just get on with it

The decision (or, rather, the non-decision) of the Civil Procedure Rule Committee to send the e-Disclosure Practice Direction and EDisclosure Questionnaire off into the sidings of a sub-committee has been the equivalent of coming up behind a funeral cortège whilst driving to catch a train. You have to show respect, of course, but you can feel time and money dripping away as you clench the steering-wheel in frustration.

The delay will not stem the creation of electronic documents nor moderate the need of lawyers to manage those documents for litigation. The purpose of the Practice Direction and Questionnaire is to streamline that effort and that expenditure so that the time and money are spent on things which matter. The worst fear is that the Questionnaire will end up in some appendix as a ‘Guide to Best Practice’ or something equally wet. If the obligations to discuss sources of data have sat unused in the Practice Direction to Part 31 CPR for over five years, it seems unlikely that the addition of a best practice guide will do much to remind lawyers and judges of their obligations, still less actually help with the process, which is what the combination of the draft documents intends.

LegalTech 2010: Andrew Haslam reports for the Orange Rag and the 451 Group delivers market analysis

My unspoken deal with Andrew Haslam of Allvision after LegalTech each year is that I will write a heavyweight report on the business trends for the ensuing year, and will also write an anecdotal local colour story designed to convey what this show is like to those who have not been there. That leaves Andrew the hard factual stuff about products which he and his army of contributors saw at the show, together with a critique (as opposed to my mere description) of the show itself.

See Andrew Haslam gives his verdict on LegalTech NYC on Charles Christian’s Orange Rag.

Jackson untroubled by delay to e-Disclosure Practice Direction

I do not generally deal in instant news in these pages – considered reflection is more my style and, besides, there is normally a queue of things to write about.

At the top of that queue at the moment is a draft article which picks up on things other people have written about the delay to the introduction of the proposed E-Disclosure Practice Direction and Questionnaire. One of those articles is by Professor Dominic Regan, but that can make way for a brief report which he sent me overnight. It reads as follows:

I attended the Civil Justice Section of Law Society dinner last night. Two nuggets emerged:

1. Sir Rupert Jackson announced the formation of a Judges Council of four members including him and Kay LJ which will meet on 4 March to oversee and push change from the top.

2. Sir Rupert took five questions. One was mine. How did he feel about the Rule Committee not passing the e-Discovery material? He said that the will of the committee had to be respected. He was not to impose his will. He gave the clear impression he was not troubled; it will happen.

Sir Rupert is a courteous and patient man and he faces bigger battles than this one. Whether one respects the will of the Rule Committee, as he does, or merely accepts it, as I do, as the equivalent of a traffic jam or train delay, the important thing is to get there in the end. I started working on this in 1993, so I guess I can wait a little longer.

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The extent of the right to privacy in French employee’s e-mails

The expression “grasping at straws” has seafaring origins – a drowning man grasps at straws in the absence of anything more solid to cling to. It comes to mind whenever the subject of EU data privacy comes up in the context of US litigation where US lawyers, already drowning in electronic documents, an unrelenting timetable, and the fear of sanctions, will grab hopefully at anything which may save them from the additional difficulties posed by EU privacy rules. They read, for example, of what appears to be a “litigation exemption” and hope that it gets them clear of the whole data privacy problem.

This attitude follows from the feeling that the whole privacy regime is an anti-US device, something invented by Europeans (mainly the French and the Germans) to impede the due process of US law. This perception inevitably generates a backlash, and the language of many US courts implies not merely a defence but counter-attack. I have only just discovered, for example, that a 1987 case called Minpeco S.A. v. Conticommodity Servs., Inc., 116 F.R.D. 517 at 528 (S.D.N.Y. 1987 referred expressly to a “sham law such as a blocking statute”. More recently, the cases of In re Global Power Equipment Group Inc., and Accessdata v Alste appear, to European eyes at least, to imply contempt for the whole privacy business.

There is more to FTI Technology than Attenex and Ringtail

My self-imposed job description involves flitting between all the players in the electronic disclosure / electronic discovery world, picking up information and ideas from one place and dropping them in another. I talk to judges, lawyers and technology suppliers, read a lot of web-based information and exchange e-mails and tweets with people from every corner of the e-Discovery world – “world” in both the figurative and literal senses. I am interested in the court rules, the practice and the technology and in how they relate to each other.

I keep secrets where I have them – from working with lawyers on behalf of their clients or when I am told of pending technology or marketing initiatives, to say nothing of the gossip which flies around – but, on the whole, my role is to talk and write about what I hear or read. The only filter apart from confidentiality is whether I am interested and think that others will also be interested.

This is a privileged position – I have lots of privileges, but the ability to pick off only the things which interest me outranks the rest. It allows me, magpie-like, to pick out the bright and shiny things and leave the rest on one side.

One of the bright and shiny things in the litigation software market is Attenex, whose visual analytics caught my eye some time ago for precisely the reason why they attract lawyers – they make it possible to grasp the overview and to drill down to the detail in a way which is simultaneously efficient and intuitive. Attenex is now owned by FTI Technology, as is the equally iconic Ringtail Legal. FTI has now had time to bed these products down into their overall (and very broad) software and services offering and I thought I ought to go and see where they have got to and how the pieces fit together in the process. Craig Earnshaw, managing director of FTI technology in London, invited me in for an afternoon recently to bring me up to date.

Dominic Regan on the Jackson Report: the word of the moment is momentum

There is a great deal of interest being shown in electronic disclosure amongst UK lawyers at the moment. Some of the activity is reported in my post Containing the interest in the eDisclosure Practice Direction and ESI Questionnaire. That ended with the disappointing (see what moderate words I can use if I take a deep breath first and try) news that the Civil Procedure Rule Committee felt it necessary to refer some aspect of the draft Practice Direction and ESI Questionnaire to a sub-committee. We (that is, Master Whitaker’s Working Group who drafted these documents) have been assured that the substance of both documents will remain in the form endorsed by Lord Justice Jackson in his Final Report [Para 2.5 on page 366].

It seems to me that the move towards proper management of electronic disclosure is now inevitable, sub-committee or no sub-committee. I am fielding requests to go and talk to law firms. Page views on my blog, which averaged around 5,000 in the closing months of 2009 were at 7,000 in January and are heading for the same number in February. If the trigger is Jackson, the parts of which lie in our own hands are the education message and the backing for the Questionnaire which, remember, does not merely make you identify your own sources, but gives you an early look at those of your opponents. Clients like early looks at the scope of the task ahead.

Millnet offer £10,000 of e-Discovery services for free

Timeo Danaos et dona ferentes is, as you doubtless know, Latin for “there must be a catch somewhere”. It seems unlikely, of course, that the Greeks are going to be bearing gifts for anybody just now, but Millnet seem to be. They obviously reckoned that the fear of a catch might be your first reaction on learning that they are offering up to £10,000 of e-discovery services for free, because they draw attention to this possibility on the page headed Driving down the cost of e-discovery which promotes their offer

Defensible document review – Epiq Systems panel at LegalTech

As is increasingly the case, The Posse List is getting out its reports of events and developments so quickly and comprehensively that it is folly on my part to cover them as well. This suits me well, since I am far from short of topics of my own, and I can extend my range by drawing your attention to Posse List reports. This is particularly helpful where I was not present, as was the case at the opening panel organised by Epiq Systems on Day 2 of LegalTech 2010. I was in fact outside, doing the final preparations for the second panel, which I was moderating, and about which I will write separately.

The subject of the first panel, and the heading to The Posse List’s article, was Defensible document review. Epiq is primarily thought of as a software company because of the respected and widely-used review application DocuMatrix. In the US particularly, however, they are known also for a document review service. The panel was led by Laura Kibbe and the panelists included our own Vince Neicho, who knows a thing or two about document review from his position as Litigation Support Specialist at Allen & Overy, and David Kessler , a partner at Drinker Biddle. David proved a lively panelist on my panel as well.

A short video could win you free tickets and accommodation at CEIC

The use of video turns up in these pages either where a supplier has used the medium to educate or to promote a product, or in a slightly embarrassed reference to my own reluctant appearances in front of the camera.

CEIC (Computer and Enterprise Investigations Conference) has come up with an interesting new use for the medium. They are offering free entry and accommodation for CEIC 2010 to the person who makes the best short video explaining why the maker wants to go to CEIC. The competition details are here.

CEIC was in Orlando last year. I was there in my capacity as a member of Guidance Software’s Strategic Advisory Board and thoroughly enjoyed it, despite torrential downpours. This year, the conference is at Summerlin in Nevada, so bad weather is unlikely.

US-UK discovery differences on video at the Masters Conference

I have only just seen a set of short videos which His Honour Judge Simon Brown QC and I made at the Masters Conference last October in Washington. They were made by LegalQB and involved a proper studio with lighting and a backdrop.

I link to the clips with some diffidence, not because I am unhappy with their message, but because (like many people) I do not particularly like seeing myself on video. My default look is serious and this, coupled with a dark suit and dark tie (I can see why media performers take advice on things like this) makes me look like an up-market but rather disdainful funeral director. The downside of a commitment to take any reasonable platform going is that I cannot choose my media, and if someone asks me to do a video in five minutes’ time, I generally I do it.

The star guest was supposed to be Simon Brown who had, only the week before, delivered the judgment in Earles v Barclays Bank which was the only important e-Disclosure decision made in England & Wales in 2009. My role (so far as I was concerned) was merely to introduce the judge and to describe briefly the differences between the US and UK disclosure regimes.

Unfortunately, although my recollection is that Simon Brown said quite a lot about Earles, that has not made it through to the final cut. We have me as the warm-up act, right down to my turning to Simon Brown and inviting him to tell us about his judgment. Then we cut to something else.

That can’t be helped and I don’t blame the editors. Nor do I intend to start imposing editorial control – the whole point of video is that it is instant and life is too short to fine-tune everything. I might wear a brighter tie next time though.

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Sedona Conference WG6 presentation to Article 29 Working Party in Brussels

I do not usually pass on things sent to me without adding some value (or, at least, some comment) of my own. I will make an exception for a report just in from James Daley, co-chair of the Sedona Conference WG6 Working Group, of the WG6 presentation today to the Plenary Session of the Article 29 Working Party in Brussels.

I will interpose only the briefest of introductions for the benefit of those bewildered by the whole subject,  a group which, alarmingly, includes many for whom it all matters very much, if only they knew it.

The Article 29 Working Party is an independent European advisory body on data protection and privacy, established under Article 29 of EU Directive 95/46/EC. Its tasks include consideration of the conflicts which arise between EU data protection and privacy laws and the requirements of foreign courts and other bodies for documents which may contain private information covered by the Directive. The Working Party issued a document on 11 February 2009 called Working Document 1/2009 on pre-trial discovery for cross border civil litigation (“WP158”).  The Sedona Conference responded on 30 October 2009 with a formal Comment of The Sedona Conference® Working Group 6 to Article 29 Data Protection Working Party Working Document 1/2009.

Applied Discovery joins the Project’s sponsors

I will do a proper welcome post shortly, and this is just a brief note to welcome Applied Discovery to the ranks of the sponsors of the e-Disclosure Information Project.

I wrote about the company recently (see Applied Discovery gets new marketing wind behind it) and met up with them in London and at LegalTech in New York. Several things are attractive about them, both as players in the market and as sponsors, but if I were to isolate two, they are their commitment to eDiscovery education and their growing strength in Canada – a country which, like the UK (and Australia and Singapore) has been developing the rules for handling electronic documents.

It will be good to have reason to look more closely at what is happening in Canada – the only one of the countries mentioned above which I did not visit in 2009.

As I say, a fuller post will follow about Applied Discovery shortly. It is good to have them aboard.

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Legal Inc case study explains an e-Disclosure project

Statements of functions and benefits and descriptions of litigation support services obviously form the backbone of the marketing material of any company engaged in the handling of electronic documents. It is difficult, however, to convey in the abstract any sense of what is actually involved for the benefit of those who have not been confronted with a case which requires urgent action. What we need are case studies, examples of real life projects which put flesh on the bones, as it were, of the process involved when litigation or a regulatory investigation must be handled promptly.

Legal Inc has done just that with a case study involving its use of Clearwell on a large and urgent project. The article is called  Clearwell and Legal Inc: cutting complex projects down to size.

Deborah Baron summarises the Autonomy Cloud message on video

I am a strong believer in the idea that businesses, and particularly technology businesses, need to make use of every medium which is available to get messages across to potential users. The new media formats such as Twitter, blogs, Facebook and video come at litigation support companies from two directions – they are simultaneously a medium for the distribution of information and a source of potentially discoverable information. Just as it becomes increasingly challenging to keep pace with the volumes to be collected, so it becomes harder to be heard as the means of instant worldwide publication become available to everybody.

That well-worn communications device, the press release, has many advantages. Companies can fine-tune the message, reduce it to the fewest possible words, and distribute it to a mailing list of recipients who will pass it on. Modern technology has multiplied the methods of distribution but the format remains the same as it did in the days when PRs were sent out in the post. The bigger the company, the more likely it is that there is a corporate style for press releases.

Containing the interest in the eDisclosure Practice Direction and ESI Questionnaire

There has been much interest in the draft eDisclosure Practice Direction and the Questionnaire which forms part of it. Lawyers and education providers keep asking for a sight of it. Lord Justice Jackson commended it. Rule-makers in other jurisdictions have been watching out for it. I aborted a Jackson-related podcast last week because we were so close to a decision on it. A lot of initiatives have been on hold waiting for it. Friday was the day of its third appearance on the Rule Committee agenda.

I have had to stockpile the mass of interesting US material which has come my way since LegalTech in order to focus on the domestic front. The very great interest which has been shown in the pending Practice Direction and ESI Questionnaire intensified as the day approached for the Civil Procedure Rule Committee’s third consideration of the documents which Senior Master Whitaker’s drafting group has been working on for nearly two years. I have fended off all requests for copies of it by referring to the rule that documents under consideration by the CPRC are not published until annexed to the minutes of the meeting at which they were discussed. That third meeting was held on Friday.

Distinguishing discussion from lecture at LegalTech

I go back over my recent posts a day or two after publishing them, partly to pick up typos to which one is blind when they are newly typed, but mainly to check that what I said is what I meant and is not capable of other meanings.

I have just come across one which has the capacity to offend anyone who has ever shown me a PowerPoint presentation, because what it appeared to say was that I hated the whole approach. I do not. I use PowerPoint myself – I may resent the obligation to produce the slides, but I value the structure they impose, the ability to illustrate dull words with other things where appropriate, and (from my perspective as a speaker) the freedom they give from paper notes.

I appreciate them also as an aid to the kind of dialogue I am lucky enough to have from time to time when someone senior in a company takes the trouble to explain what lies behind the press releases. I have had a few sessions like that recently, and very good some of them have been. A passage which I have now deleted from a recent post appeared to denigrate the lot.

Mixing eDiscovery business with pleasure at LegalTech 2010

I write each February after LegalTech in New York to try and convey how this event is simultaneously hard work and good fun. Certain times and cultures are inherently suspicious of the idea that you can enjoy yourself whilst working, and this may be one of those times. I stand, however, by my usual proposition to the effect that anyone whose work involves the management of electronic documents for litigation etc, whether as lawyer, judge, client, supplier or consultant, should be there, and that their attendance will be repaid by the knowledge and information which they acquire. That knowledge and information is gained equally by going to sessions, seeing applications, and talking to people, whether in formal meetings, in chance encounters in corridors, or in the bar.

This is the more true in a year when one of the themes is collaboration and cooperation. That collaboration is needed between lawyers and their clients, and between suppliers and those who instruct them; it operates at a business process level and at a technical level, and it extends, by virtue of common sense as well as the rules, into cooperation between lawyers on opposing sides. If you must collaborate with people then it makes sense to know something about them, and the shared experience of LegalTech is the best place to mix professional relationships with the personal ones which are the oil in two figurative senses – the oil in the machinery which keeps the processes running, and the oil on what are occasionally troubled waters. If you know the people, the processes run better and the difficulties are more easily sorted out.

LegalTech optimism points to busy eDiscovery year ahead

One happy-looking CEO does not make a boom, but the general air at LegalTech 2010 was one of optimism. That indicates more than just good times for litigation support companies. What are the trends, and how will the litigation software and services suppliers make the most of better times ahead?

LegalTech over, I was slumped in the corner of BA’s executive lounge at JFK on Friday night, off duty for the first time in a week, and clutching a large whiskey. The CEO of a well-known software company swept past, late for his plane. His grin lit up the room: “We’ve had such a good week” was all he said as he rushed by. He may have expressed the mood more simply and succinctly than others, but that was the impression which I had already formed of the general atmosphere at LegalTech.

CaseCentral CARtoon – what drives Toyota’s eDiscovery purchasing strategy

CaseCentral’s Case in Point cartoon series maintains its quality with this week’s one in which Toyota explains what drives its eDiscovery purchasing strategy.

I spotted a judge at LegalTech wearing a No Processing badge which emanated (anonymously) from CaseCentral.  Full marks for the marketing.

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BA misses the bus – how to lose goodwill at the end of the project

The customers remember best what happens last, whether you are running an e-Discovery project for them or flying them across the Atlantic. It seems a shame to do it all so well and then screw up at the end.

I am generally fond of British Airways. I like to see its colours in remote corners of the world; I appreciate its treatment of frequent flyers; its planes seem to take off at more or less the right time and land in the right place. What a pity, then, that my otherwise faultless flight from New York on Saturday ended in my being trapped on the plane because no one had thought to provide the buses to take us off.

They could not have been more helpful in New York, even volunteering to move us to an earlier plane to get us out before the snow. We don’t expect real food. It was a bumpy ride, but the cabin staff were efficiently good-humoured and we arrived at Heathrow on time notwithstanding the conditions. There, however, the process and my goodwill ran out simultaneously.