A week of positive opportunities in e-Disclosure

March 27, 2010

There are two reasons for running a week’s worth of reports and comments into a single article. The least meritorious of them is that I will not keep up with it all if I do not do a composite post. More positively, that is because a lot has been happening and I can better convey the sense of that in a single article. The overall message is one of positive steps forward, not merely defensiveness.

The previous week ended with a session run jointly with Andrew Haslam of Allvision at a medium-sized firm with a strong regional base and a London office. It is exactly the sort of firm which I have written about as holding the key to the future, at least in my own narrow ambit – agile, versatile, staffed with lawyers trained at the big city firms, and hungry for quality litigation work. It is the sort of firm which, if it makes alliances with the right providers of litigation services and invests in the skills, could take on much bigger firms at a cost lower than theirs, partly because their costs and charging rates are lower and partly because of the way they run their litigation. I will spend any amount of time with firms like this, because they get it, and could change client perceptions about how litigation should be managed.

I covered the background — the framework of rules and cases, the implications of the Jackson Report, and where we stand with the proposed new practice direction and ESI Questionnaire. Andrew Haslam spoke about the technology which is available and what a firm needs to have in place as processes and connections to be able to run with anything which comes along. In the pub afterwards, one of the solicitors told me frankly that he had come to the session expecting to be unconvinced but, having heard us on the subject of the ESI Questionnaire, intended to send it to his opponents in a particular case first thing on Monday morning. A result, I think. Read the rest of this entry »


Reasonably accessible tapes in cartoon and Court of Appeal

March 26, 2010

I resist passing on all Tom Fishburne’s wonderful Case in Point cartoons which he does for CaseCentral – this is supposed to be a serious place, and I don’t want Fishburne eclipsing my own occasional forays into the lighter side of e-Discovery.

Like all the best cartoons, this week’s is both telling as well as funny:

Importance of backups

It is also, as it happens, very timely, coming in the week where the Court of Appeal has actually had to consider a point about reasonable accessibilty of back-up tapes – the case is Fiddes v Channel 4 and I will write about it as soon as I can find a public version of the original judgment. Briefly, the judge decided against ordering the disclosure of some hard-to-access tapes on grounds of proportionality and the Court of Appeal upheld his judgment.

It does not matter what it is which makes people think about the subject – a cartoon and a Court of Appeal judgment have equal weight at that level.

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Using marketing to make people hate you

March 26, 2010

There is more to marketing than making yourself heard – that is just a process, achieved with money and effort. The objective, however, is to make people buy from you, not hate the sight and sound of your name. Bad marketing taints the water for everyone else.

My post Revolutionary video pillory for PR consultants drew attention to a video on Charles Christian’s Orange Rag which sounded more like a recording than the parody it was meant to be.

He has now put up a sequel The embargo has been broken which, unlike most film sequels, maintains the standard of the first.

Whilst on the subject of PR consultants, can I give a medal to whoever is responsible for the PR for a particular US translations company? I had never heard of them before the recent campaign began and, it is fair to say, I never want to hear of them again. The trick appears to be to place the same article about the company in as many places as possible, regardless of context — I came across one today on what appears to be a site for fatties and food faddists with tags like “burn fat fast” and “psychic powers” and “healthy foods to eat”. They are not, therefore, fussy about the company they keep, merely keen that you should see their bloody press release as often as possible. Read the rest of this entry »


Gucci v Curveal: a blow for US interests – whichever way you understand that expression

March 26, 2010

British 19th Century “gunboat diplomacy” and the song The Wreck of the Old 97 are what came to mind when I read the latest Opinion of a US court about the relative importance of US interests and the laws of other countries restricting the discovery of private information. Carry on like this, USA, and you may well need a gunboat to support document collections.

The article by the respected US e-Discovery commentator Tom O’Connor Why the Rest of the World Thinks we are Crazy concerns an Opinion of the District Court of the Southern District of New York which orders a Malaysian bank, not party to the proceedings, to produce documents despite a Malaysian statute prohibiting them from doing so. I volunteer to speak on the half of “the Rest of the World” Read the rest of this entry »


Legal Efficiency supplement in The Times today

March 25, 2010

Raconteur has produced an excellent supplement for today’s Times on Legal Efficiency which includes a report by Professor Dominic Regan of an interview with me. Having, as I do, the luxury of writing about anything I choose, it is good occasionally to have a discussion agenda set by someone else. Dominic is a skilled interviewer, and his questions picked out what matters.

That is true also of the others whose comments appear in the supplement, which is a very readable encapsulation of the issues which lawyers face in delivering affordable legal services to clients whilst preserving profitability.  The clients do not necessarily read articles aimed at lawyers, but they do read the Times.

This is just a quick mention to make sure you get a copy whilst it is still on the stands. I will do a fuller summary later.

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Talking rather than writing – normal service will be resumed soon

March 24, 2010

The relative silence on these pages recently does not imply that I have run out of things to say (sorry about that) merely that I have had a good run of being out and about, or making plans for future events here and abroad. All good, all interesting, and all indicative of a rise in interest in e-Disclosure / e-Discovery amongst those who need to know about it, but not consistent with much considered writing.

Gucci America v Curveal has not passed unnoticed, and there is an article coming up which invokes 19th Century British gun-boat diplomacy and The Wreck of the Old 97 as parallels for the US approach to trifles like the laws of other countries. Another article, consistent with my current theme about objectives being more important than processes, shows how a PR agency can be 100% successful in getting its client’s name out there, whilst making it deeply hated – the SEO is great, chaps, but the effect is wholly negative.

All this and more when I get back from the third in my sequence of post-Jackson talks in London. Tomorrow’s one is to ALPS, the Association of Litigation Professional Support Professionals, in company with Vince Neicho of Allen & Overy – an important and knowledgeable audience. There is one more after that, on Thursday, at which I am listening rather than speaking, and then I am back at my desk for a bit and can catch up.

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A flying visit to Edinburgh

March 22, 2010

The spate of blog posts last week-end was a clearing of the decks in the knowledge that I would not have much writing time for a bit. The Edinburgh trip which is the subject of this post is being followed by some in-house sessions for lawyers, and when there is a choice between talking to people and writing, the talking comes first. I also had to take every last stick of furniture and cabling, right down to the router, out of my office so that it could be  decorated and, after 11 years in the same room, that takes some reassembly.

I was in Edinburgh on Tuesday, speaking to the Scottish Society for Computers & Law with Ian Manning of Raposa Consulting and Nigel Murray of Trilantic. Trilantic organised it, and kindly invited me to take part. The law technology commentator Charles Christian of the Orange Rag has rather unfairly labeled me as the Ancient Mariner of air travel on the basis that I no sooner book a flight than either the prices plummet or the airline announces a strike. This is the first time, however, that an airline has actually ceased trading between my booking the ticket and take-off. Shortly after I was invited to go to Edinburgh, a small airline announced the opening of a route from Oxford to Edinburgh, and the price, the convenience, and the wish to support a local venture caused the suspension of my usual caution and my loyalty to British Airways. If someone ever offers to fly you from just up the road to where you need to be for £49 each way, then the offer is almost certainly too good to be true – and so it proved. The airline suspended flying in days, and I ended up as usual in my branch office, the BA Executive Lounge at Heathrow’s Terminal 5. Don’t even ask about the return journey.

In between, however, it was a good trip. Ian Manning and I went to see one law firm which gave us a feel for the climate and the context – you can read all you like about a jurisdiction, but you have to go there to begin to understand those things which are the same and those things which are different. Read the rest of this entry »


7Safe eDiscovery networking event on 15 April

March 19, 2010

7Safe is holding an eDiscovery networking event on Thursday 15 April at The Hoxton Hotel, 81 Great Eastern Street, London EC2A 3HU at 6.30pm.

It is to mark the official launch of their hosting of Anacomp’s CaseLogistix, one of the document review tools which was used by Anton Valukas, the examiner responsible for the recent report into the collapse of Lehman Brothers (see my articles about the Lehman Report and about the alliance between 7Safe and Anacomp).

I have a two interests in going, since both 7Safe and Anacomp are sponsors of the eDisclosure Information Project, and a third if you count the fact that I am speaking at the event. I see that the invitation is careful to distinguish between that part of the evening and the “fun” which is to be provided along with the refreshments.

If “fun” slightly overstates the entertainment value to be derived from listening to me talking, these are certainly interesting times, as I hope I will make clear. It may be premature to suggest in March that Senior Master Whitaker’s judgment in Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) (05 November 2009) is the e-Disclosure judgment of the year, but it certainly puts pressure on those who think that they can simply ignore electronic documents as being too difficult or too expensive to handle. Read the rest of this entry »


Vector Investments: successful claimant made to pay for unhelpful disclosure

March 14, 2010

Is quite rare to come across UK cases where the quality and costs of disclosure become the subject of a reported judgment. In rare cases such as Digicel, Earles or Goodale, disclosure is either the primary subject-matter of the judgment or is a sufficiently important part of it that (if the judgment is reported at all) we get to hear of it.

Judgments must, in fact, be made every week which record adverse comment, or adverse costs orders, against a party which has failed to comply with its disclosure obligations. Whilst these are often to do with under-disclosure (that is, a failure to disclose that which ought to have been disclosed) it is just as important to know of cases where one party imposed an unnecessary burden on the other by over-disclosing or by the manner in which the documents were presented to the other side. The only reported case I have ever come across on this pre-dates the 1999 rules and, indeed, the days of electronic documents.

Vector Investments v Williams [2009] EWHC 3601 (TCC) (05 November 2009) is of the latter kind. I conclude from the references in it to “files” that disclosure was given on paper, which itself raises questions, but not those which came up between the parties. It is a judgment of Mr Justice Ramsey in the Technology and Construction Court. The main interest as to costs generally lies in the judge’s consideration of the liability for costs following a compromise and a Tomlin Order. The only outstanding point for determination was the assessment of costs, and the judge felt obliged to consider the whole subject of the principles applicable to assessment of costs. You can get the flavour of it from a sentence in paragraph 71 which reads “How should the court approach cases where a claimant has made offers which do not comply with Part 36 and which have been beaten by the claimant as a result of settlement?”. Read the rest of this entry »


New e-Disclosure articles on the SCL website

March 14, 2010

The website of the Society for Computers & Law has two new articles about electronic disclosure.

One is by barrister Clive Freedman of 3 Verulam Buildings and is called Disclosure: the Proposed Rule Changes. It summarises succinctly the elements in Lord Justice Jackson’s Final Report relating to disclosure and to electronic disclosure – I make that distinction because the labels serve to separate the principles which apply to the scope of disclosure and the court’s role in managing disclosure (on the one hand) from the elements which relate specifically to the disclosure of electronic documents (on the other). In practice, since the vast majority of documents to be disclosed are electronic, this distinction may seem unimportant. Lord Justice Jackson, however, treated them under separate headings and, for the moment at least, discrimination between the “what” and the “how” is a useful one, although they are, of course, interlinked – the third question “how much?” introduces cost into the equation, as proportionality demands that it must. Read the rest of this entry »


Stratify and CaseLogistix manage e-Discovery for the Valukas report on Lehman collapse

March 14, 2010

I am reasonably sure that I will not find time to read the 2,200 page Valukas Report on the collapse of Lehman Brothers. Fortunately, Gregory Bufithis of The Posse List has extracted from it the description of the electronic discovery exercise which Anton Valukas, the examiner appointed by the U.S. Bankruptcy Trustee, undertook in the preparation of his report (see The Valukas Report on the Lehman Brothers collapse and e-discovery — Stratify and CaseLogistix win the day .

The chief interest to me, apart from the staggering volumes of documents involved (to say nothing of the 2600 software systems and applications in use at Lehmans) is that two of the e-Disclosure Information Project sponsors, Stratify and Anacomp’s CaseLogistix, emerged as the systems of choice for the investigation. More than 70 contract attorneys, in addition to lawyers from the retained law firms, conducted first first-pass reviews using these two systems. Read the rest of this entry »


Welcome to Recommind as a sponsor of the e-Disclosure Information Project

March 14, 2010

It is very good to be able to extend a warm welcome to Recommind as a new sponsor of the e-Disclosure Information Project. As the focus for e-Discovery / e-Disclosure turns increasingly on to the way companies collect and manage data on their own systems, the addition of a provider who embraces enterprise search, e-mail management, records management e-Discovery and compliance is both appropriate and timely.

Recommind’s roots are in enterprise search. MindServer Search brings user-based relevancy tuning, that is, result sets which are boosted by input from the individual profile of the user. It also allows federated search, the ability to search across internal and external data sources with a single query. The result of indexing information from document management systems, intranets, contact management databases and websites are “concept models” which rank search results by relevance. Read the rest of this entry »


Welcome to H5 as a sponsor of the e-Disclosure Information Project

March 14, 2010

It is a great pleasure to be able to put up the logo of information retrieval company H5 as a new sponsor of the e-Disclosure Information Project. I described H5 in a recent article as “a cross between a commercial information consulting business and a research university” one which, I said, lays as much stress on its high-calibre people as it does on the services and software which comprise its offering to clients.

My connection with H5 goes back to my first foray into the US litigation world, at LegalTech in 2007. I went there because it had become obvious that a half-understanding of US e-discovery was acting as a brake on the UK use of electronic means to tackle electronic documents. The UK alternative was simply to ignore the fact that 90% of communication between businesses is electronic, and to take refuge in the assertion that electronic discovery was something Americans did, and did both extravagantly and expensively. Whilst we still suffer from that amongst the backwoodsmen of UK litigation, we are eroding it and replacing the image of US providers as all “Texans with tall hats” (as one of them once put it to me) with the reality of intelligent people trying to solve much the same problems as our own. Read the rest of this entry »


Standards and outcomes: Hitler, the NHS, the police, social workers – and e-Disclosure

March 13, 2010

My heading, I appreciate, looks like the components of some random word game. There is in fact a connection, and it is to do with the supremacy of result over procedure and of destination over the journey. Hitler, the NHS and rest are called in aid as demonstrations because both came under my eye last week without their place in the jigsaw being immediately apparent to me. What really matters in disclosure / discovery is the outcome in terms of evidence considered by the parties and the court, not mere compliance with standards apparently imposed by the rules. The client is interested in the outcome, as are victims of crime, abused children and hospital patients. Rules matter, but they matter less than the end-result. Read the rest of this entry »


Free use of Equivio Early Case Assessment Software for up to one million documents

March 12, 2010

Equivio is offering to make its early case assessment application Equivio>Relevance available to a limited number of participants in what they call the Equivio>Relevance Challenge – see the press release and sign-up page for details.

Most lawyers can understand the basic concepts of keyword search, if only because they do it every day with Google. Because one can generally find something out of the mass with a Google search, it is tempting to assume that throwing a list of keywords at disclosure / discovery data will reduce the volumes of data to be reviewed – and so, of course, it will. Many lawyers will understand, or at least be aware of, the idea that a keyword search is flawed as an approach to identifying relevant documents, not least because “relevance” turns on many factors beyond the incidence of a particular word or words in a document – correspondence between fraudulent conspirators will contain neither “fraud” nor “conspiracy”, to take a trite example. Read the rest of this entry »


EDiscovery leads in March issue of American Legal Technology Insider

March 11, 2010

The March issue of Charles Christian’s American Legal Technology Insider is available here.

It leads with the headline Shake-up time for e-Discovery sector, with Iron Mountain’s acquisition of Mimosa Systems and the report that Marsh & McLennan Companies are putting the Kroll corporate investigations division on the market. Read the rest of this entry »


Cloud Computing: Privacy, Disclosure and Discovery Considerations

March 10, 2010

There is a free webinar on 11 March callled Privacy, Disclosure and Discovery Considerations stemming from Cloud Computing. It is put on by Wave University and CT Summation and the speakers are Dan Regard of iDiscovery Solutions, Inc., eDiscovery Specialist Reza Alexander and Joseph Baker of Mayer Brown in Washington.

Wave University is an educational platform for legal professionals offering free webinars, ‘lunch and learn’ series and software training webinars.  Any US-based discussion about privacy needs an EU perspective and Reza Alexander, who was until recently the Litigation & Practice Support Manager for DLA Piper UK, will bring an authoritative viewpoint.

The webinar is at 10:00 – 11:00 Pacific Time, 1:00-2:00 Eastern Time, 18:00-19:00 GMT tomorrow 11 March 2010.

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Cats Legal partners with Digital Reef

March 10, 2010

I wrote recently about Cats Legal, the combination of established print solutions provider Cats Solutions and litigation support provider LDSI (see Cats Solutions combines with LDSI to become Cats Legal).  My planned meeting with Mark Wagstaff of Cats Legal had to be postponed, so I have yet to visit the new operation. What I have had, however, is a press release from Digital Reef announcing a partnership with Cats Legal.

Cats Legal obviously intends to hit the ground running if this deal is anything to go by. Digital Reef brings a range of solutions for handling data for e-Discovery / e-Disclosure. Apart from its scalability (it can apparently process as much as 10 TB per day in some cases), it can be brought into use very quickly, making data available to a company and its lawyers in the timescales imposed by regulatory investigations as well as for litigation and internal investigations. Read the rest of this entry »


Georgetown Law: who provides eDiscovery education?

March 10, 2010

Georgetown Law E-Discovery Law Blog carries an article by George Rudoy of Shearman & Sterling which moves away from the certification argument (see my post Rudoy on eDiscovery certification – reality or myth) and on to the question about who should actually provide eDisclosure education.

His new article is called Let’s hear it one more time for education.

The central problem boils down to this: the only people outside law schools with the combination of motive and money to provide free eDiscovery education are the suppliers. A supplier who became a monopoly or dominant provider of education is in a position to influence, by subliminal as well as tangible means, the ideas of the coming generation for its commercial advantage.

George Rudoy kindly gave me as an example of one way round this. He says: Read the rest of this entry »


Hitler and Cloud Computing Security

March 9, 2010

No film scenes can have received as many mashups as the extract from Downfall (Der Untergang) in which Bruno Ganz’s Hitler berates his generals and other clips in which Der Führer gets very cross. Variants include Hitler phones an Indian call centre, Hitler reviews Windows 1945 and the nicely circular Hitler is told he is not Hitler (“I’ve had enough of you morons telling me I’m Bruno Ganz”).

In Hitler and Cloud Computing, he learns that his customer database has been outsourced to Leningrad and that security has been compromised. It is not security standards which matter, he rants, but security outcomes.

My thanks to Gabe for pointing us to it.

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New web site for e.law Asia-Pacific

March 8, 2010

I can see why it has taken e.law some time to assemble their new website following the acquisition of CCH Workflow Solutions in November 2009. The integrated business now covers a very broad range of activities across a wide geographical area, and that alone must have taken some time to assemble in a website with a new corporate identity.

What they have done in addition, however, is taken a great deal of trouble to explain to site visitors what the purpose is of the activities undertaken by the integrated business. Each section – e.forensics, e-discovery, e.courts, bureau services etc – begins with a section called “what is …” where so many sites appear to take it for granted that their visitors understand these things. In basic marketing terms, the number of law firms and corporate clients who do not understand is greater than the number who do. All are affected by the same demands and pressures, not least those of the court rules. A provider who bothers to explain the purposes of the various functions is likely to be attractive to new clients as well as existing ones. Read the rest of this entry »


EnCase Portable brings data collection to your desktop

March 8, 2010

The idea that a law firm might keep a copy of Guidance Software’s EnCase Portable in a drawer for on-the-spot collections leads into a discussion about how much a firm needs to know.

I will let Guidance Software speak for themselves about EnCase Portable via their web page about it, the descriptive information about EnCase Portable Version 2 and the press release which says that it is due to be released in late March 2010.

I am, as always, more interested in how new developments can help lawyers to understand what these applications can do as a technical matter, and to see how they might take control of parts of the eDiscovery process where it makes economic sense to do so. The point about EnCase Portable is that it allows lawyers and their clients to undertake rapid data collections without outside help. My general proposition that most lawyers do well to have a stable of experts – people whose skills, prices and individuals they know – on whom they can call quickly. This applies particularly for the collection stage which is both technical and the foundation for everything else – foul that up and what follows is inherently flawed. Read the rest of this entry »


First law firm commentary on Goodale v MoJ

March 8, 2010

Congratulations to Tim Constable of Matthew Arnold & Baldwin who seems to have been the first solicitor to get out some information to clients on Senior Master Whitaker’s judgment in Goodale v Ministry of Justice.

His article E-disclosure – the new questionnaire gets its first outing was published during Sunday morning. The judgment was published only at the end of last week.

There is a perception in some quarters that electronic disclosure is of relevance and interest only to very big City firms and their clients. It is important to get across to such people that nearly all commercial clients create, receive and keep their documents in electronic form. Solicitors who are on top of this, as Matthew Arnold & Baldwin appear to be, deserve to win clients as a result, and are entitled also to expect the courts to keep up with them.

As it happens. Matthew Arnold & Baldwin was the first law firm to whom I ever gave a legal technology presentation, in March 1993. They were ahead of their apparent peers then, and seem still to be so.

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Legal Efficiency Supplement in the Times

March 8, 2010

I mentioned in passing in my post of last night that  I am to interviewed by Dominic Regan for a special report which Raconteur are publishing  on Thursday 25 March in The Times newspaper. Called Legal Efficiency,  it will look at, amongst other things, Lord Justice Jackson’s Report on the costs of Litigation, technology such as that required for e-disclosure, and litigation funding.

The report will consider how both law firms and general counsel can improve their efficiency to reduce costs, save time and improve results. It will discuss the way law firms bill their clients, the changing role of barristers chambers, alternative business structures and legal process outsourcing. The report will also look at the emergence of litigation funding to bring access to justice for smaller claimants/ defendants as well as increasing efficiency for larger companies. It will look at ATE and BTE insurance from the perspectives of the Jackson Report and those whom it affects. Finally, there will be specific treatment of e-disclosure, document review, early case assessment, business continuity, workflow management and other technology for law firms and corporate legal departments alike.

Going out on the same day as The Times’ legal section, it should be a very informative awareness piece, which will undoubtedly receive a lot of attention that is very timely indeed.

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Spring Offensive in the eDisclosure War

March 8, 2010

It feels suddenly as if a new phase is opening up in the war to tackle the wasted costs of e-disclosure. If the Rule Committee’s recent failure to grasp the nettle seemed a rebuff, there is a new Spring Offensive coming. A busy week moved us forward on several fronts.

I would have been content for the week with the signing of a new sponsor (Nuix) and the publication of Senior Master Whitaker’s judgment in Goodale V MoJ which, as I said in my article on it Goodale v MoJ – a template judgment for active management of eDisclosure, is as important as a model for e-Disclosure case management as for the fact that our ESI questionnaire is annexed to it and thus made public. There has been more than that, however. Read the rest of this entry »


Revolutionary video pillory for PR consultants

March 7, 2010

The humour for the week was provided by Charles Christian, whose Orange Rag included a piece about PR consultants called So that’s why the editor is grumpy and aptly illustrated by a video.

I should make clear in passing this on that the PR consultants with whom I deal are of the highest quality and would not dream of representing their clients in the manner indicated in the video. That combination of words indicative of excitement and uniqueness delivered in a flat monotone redolent of ignorance and boredom is, however, something with which I am not unfamiliar, and I am happy to do my bit to improve the PR industry by passing on the link.

My own view on this is that if they were forced to remove expressions like “the best”, “revolutionary” and “unique”, they would have to find other words to fill the space, and might come up with something which actually gave a us a clue what their clients’ applications do, why they might be useful to a lawyer, and why they are worth a look.

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Capturing web pages with iCyte now for the Enterprise

March 7, 2010

The latest addition to my collection of tools for gathering and storing information is a product called iCyte. I cannot improve on the maker’s own description as follows:

iCyte is a browser add-on and web service that lets users save any web page that interests them on iCyte’s servers, along with their highlights on important text, plus notes and tags. These saved “Cytes” are organized in projects to form a searchable, shareable knowledge base accessible from any computer. Unlike bookmarks, Cytes are retrievable even if the original web pages have been removed or changed.

There are apparently already thousands of individual iCyte users, attracted by the ability to store anything from academic, legal or corporate research to – well, anything which interests you really. My screen-shot shows the beginnings of a collection of case reports. Read the rest of this entry »


Pre-action spoliation of evidence in English law

March 7, 2010

An article by Professor Peter Hibbert of the College of Law in the Commercial Litigation Journal explores the extent to which English law includes the concept of spoliation of evidence. Why does this arise now, and what are the implications for disclosure in England & Wales?

The judgment of HHJ Simon Brown QC in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009), is interesting for various reasons. It captured attention mainly for the costs penalty suffered by the defendants as a result of their failure to disclose documents directly relevant to the central issue; no less important, in my view, was the judge’s careful analysis of the primacy of contemporaneous documents as evidence, distinct from the formalities which the rules provide for disclosing it.

At a yet different level are the questions which arose as to the extent of the duty to preserve documents which might be required in future litigation. Although it is commonly thought that the US test is more stringent than the one provided by English law, that is really because the penalties for getting it wrong in the US (in the form of sanctions) are more severe than in the UK. But if the fear of losing your costs may weigh less heavily than the US fear of sanctions, the risk that you might actually lose the case for want of documents which would prove your position should also have a place in deciding what to keep and what to destroy. Read the rest of this entry »


Goodale v MoJ – a template judgment for active management of eDisclosure

March 5, 2010

The publication of Senior Master Whitaker’s judgment in Goodale v Ministry of Justice is important for reasons beyond the fact that the parties used the ESI Questionnaire which is annexed to the proposed e-Disclosure Practice Direction and which is also annexed to the judgment. The judgment includes a careful recital of the problems raised by electronic documents and of the rules which already cover them, as well as a copybook example of the analysis which a judge ought to make once it is clear that electronic documents exist and should be disclosed.

Senior Master Whitaker is, of course, the chairman (and I am a member) of the working party which drafted both the Practice Direction and the Questionnaire. You will probably be aware by now that the Civil Procedure Rule Committee recently decided that the appropriate course was to kick the PD into the long grass of a sub-committee. The Goodale judgment shows how much can be done by active management from a judge who is willing to roll his sleeves up. Read the rest of this entry »


Nuix joins the e-Disclosure Information Project

March 5, 2010

I am delighted to welcome eDiscovery and electronic investigation software company Nuix as the latest sponsor of the e-Disclosure Information Project.

The connection began at the Ark Group eDiscovery conference in Sydney last year when I found myself sitting next to Nuix CEO Eddie Sheehy and had a drink with him and Browning Marean of DLA Piper US after the conference.  We met up again at LegalTech in New York a few weeks ago, when I went to see Nuix 3 with HHJ Simon Grenfell, Designated Civil Judge, Leeds and North Yorkshire. Nuix 3 is offered by London-based providers 7Safe (itself a sponsor of the e-Disclosure Information Project) and Millnet.

Next week, on 9 and 10 March, Eddie Sheehy is Chairman of the Ark Group Sydney conference and HHJ Simon Brown QC, Designated Civil Judge at the Birmingham Civil Justice Centre is on a judicial panel with The Honourable Justice Ian V Gzell, who was a speaker at the LexisNexis eDiscovery conference in Singapore which Browning Marean and I co-chaired last October and at which Senior Master Whitaker was also a speaker Read the rest of this entry »


E-Discovery costs-shifting in US litigation

March 3, 2010

I referred in a recent post to an article I had read which concerned the shifting of US e-Discovery costs from one party to another, that is, the situation where costs incurred by one side are taxed and payable by the other.

I was puzzled, because I was not aware that this was common in US courts, where they refer to costs recovery between parties as “the English rule”. If one has questions about such things, the man to ask is Craig Ball and, although I did not ask him, it turns out that he has written recently on this subject anyway. Read the rest of this entry »


The Readership of the e-Disclosure Information Project

March 3, 2010

I have just been asked to give some statistics for readership of my blog and, having done the research, I might as well summarise it here. It happened to be quite a good day to ask – there were 436 page views that day (Monday), my second-highest daily hit rate, and 432 today.

Although I am obviously interested in knowing how many people take the trouble to read what I write, mere numbers are not a particular ambition. I am more interested in being thought of as authoritative and interesting to those who actually want to know about the subject, not to attract numbers for their own sake. My aim is to make sure that anyone who is interested in the subject of e-Disclosure / eDiscovery will come across my sites either directly or by reference from elsewhere. I am perfectly happy with 5,000 to 7,000 page views per month on a narrow subject, but it is not what I “sell”. I value the anecdotal evidence that people notice what I write ahead of the bare statistics.

Let us take the actual statistics first. The graph below shows page views since August 2007. They settled at around the 5,000 mark in September, October and November 2009; numbers were down, inevitably, for December (the same is true of the summer holidays) and then shot up to over 7000 in January and a little less in February. Read the rest of this entry »


A proper welcome to Applied Discovery as a new sponsor

March 2, 2010

I promised a proper welcome to Applied Discovery when I put up a short post on 16 February to draw attention to the arrival of their logo. These Welcome posts are generally the only occasion when I invite collaboration on what goes into a post – generally, except where I am unsure of my facts or my authority to mention something, I write what I like. A first post to describe what a company does warrants co-authorship and, with Rob Robinson as their Senior Director of Worldwide Marketing, it seems daft for me to invent my own description. What follows is his:

Founded in 1998, Applied Discovery is a global leader in the delivery and management of electronic discovery services and support.   Part of LexisNexis since 2003 (a member of the Reed Elsevier Group), Applied Discovery leverages an extensive portfolio of resources, relationships, and research to help clients solve today’s and tomorrow’s discovery challenges.  Simply stated, Applied Discovery delivers multinational collection, analytics, processing, review and production services for law firms, corporations, and governmental entities engaged in audits, investigations, and litigation. Read the rest of this entry »


Anonymisation, the Hague Convention and US judicial notice of EU privacy protection

March 2, 2010

I expressed puzzlement recently at the high proportion of page views from the US over a period when most of my focus has been on the UK draft practice direction. I know, of course, that there is much US interest in developments in other jurisdictions, particularly the UK, and there is an obvious connection between Judge Scheindlin’s Pension Committee Opinion with its huge potential to drive litigation costs upwards, and the focus of the Jackson Report on Litigation Costs which is to drive them down.

It is more likely, in fact, that the recent US interest is based on two of my recent posts which concern the collision between US data demands and EU privacy restrictions. The two articles were Sedona Conference WG6 presentation to Article 29 Working Party in Brussels and The extent of the right to privacy in French employee’s e-mails. Both of these have been picked up by US commentators, and it is likely that the high proportion of US-derived page views come, in part at least, from these articles. Read the rest of this entry »


E-Discovery and Judicial Involvement in Australia

March 1, 2010

Project Counsel is the sister site to The Posse List, both run by the ubiquitous Gregory Bufithis. Project Counsel’s web site carried an article on 25th February with the title In Australia, e-Discovery and enhanced judicial involvement come of age . That is a high ratio of interesting key words to me, with “Australia”, “e-Discovery” and “enhanced judicial involvement” all being hot topics.

The article summarises a look taken by Australian law firm McCulloch Robertson at the development of active court involvement in the management of cases generally and electronic discovery in particular. It includes many elements in common with those which we either have or are promoting in England & Wales following the Jackson Report on Litigation Costs. The general aim is the reduction of the cost of litigation and minimising unnecessary delays. It is some consolation to me, following the recent side-lining of our draft e-Disclosure Practice Direction and ESI Questionnaire, that the introduction of the equivalent in the Federal Court of Australia (originally Practice Note 17, now CM 6) was as long drawn-out and painful a process as we are finding it here. Australia got there in the end, a little over a year ago. Our draft Practice Direction took account of the arguments and difficulties experienced in Australia amongst other places.

Doubtless we will get there in the end, and catch up with not just Australia but Singapore and Canada, both of which introduced also new e-Discovery rules in 2009. We used to lead the world in such things, but that was true also of cricket and economic prosperity. Read the rest of this entry »


Cats Solutions combines with LDSI to become Cats Legal

March 1, 2010

Print solutions provider Cats Solutions has added the former business of LDSI (Legal Document Services International) to its print and document management services. The combined business has relocated its City-based 24/7 hub facility to new premises at Broken Wharf House, EC4 where the Cats Solutions and LDSI teams and facilities have been integrated into a single entity, rebranded as Cats Legal. A new web site is coming soon.

LDSI was a sponsor of the E-Disclosure Information Project and Cats Legal continues that much-valued relationship. Mark Wagstaff of Cats Solutions was in fact a founder of LDSI. The fact that my meeting with him took place at LegalTech in New York suggests that his ambitions for the combined business do not stop in the UK. With him in New York was Mark Burrows, a familiar face in the UK litigation support scene, who has joined Cats Legal. Read the rest of this entry »


E-Discovery developments in 2010 from legalsupportnetwork.co.uk

March 1, 2010

Rupert Collins-White is Head of Content and Community at legalsupportnetwork.co.uk and runs a LinkedIn Group of the same name. I met Rupert when he was Features / Commissioning Editor at the Law Society, and he now brings to legalsupportnetwork the same vigourous approach to stimulating discussion around topics of interest to lawyers.

He has picked up on the article to which I referred in a recent post in which Computers and Law combine two articles of mine (my post-LegalTech look at the year ahead and my e-Disclosure predictions made for the SCL at the turn of the year) to make a single article called Trends: e-Disclosure and Legal Practice in the Recovery Position.

Rupert correctly identifies that I am optimistic about the year ahead, both in relation to what we might expect from the courts and from the perspective of suppliers. You might like to join the LinkedIn group anyway, but it is worth setting out Rupert’s summary. He says this: Read the rest of this entry »


7Safe White Paper: the inter-relation between computer forensics and e-Disclosure

March 1, 2010

7Safe has published a white paper which I co-wrote with James Kent of 7Safe. Its purpose is to explain, mainly to lawyers, the role of a forensic collection of data in the subsequent proceedings, whether those be civil or criminal proceedings. The paper is called eDisclosure & Forensics – What do I need to know?

The paper traces the development of forensic techniques which were used first in cases involving fraud and the like. As defendants’ lawyers became more adept at challenging the technical evidence, so police and other enforcement agencies needed to improve not merely the manner of collection but their subsequent ability to prove that the collected data was what it appeared to be and had come from the alleged source without having been tampered with on the way. Read the rest of this entry »


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