You have an urgent e-Disclosure requirement NOW. How do you get started NOW?

April 29, 2010

Although I have long had an interest in disclosure and specifically in electronic disclosure, the sense that there was a mission and a message to promote dates from the IQPC conference in London in May 2007. It was the first big conference I had attended, and was the first time I met Senior Master Whitaker and heard him speak. The other speaker who caught my attention at that conference was Mark Surguy of Pinsent Masons. His message was not addressed to those accustomed to e-Disclosure but to lawyers who might find themselves suddenly involved in a case which required skills and knowledge about handling electronic documents for which their experience had not equipped them. His message was that everyone should know what they would do if an urgent e-Disclosure problem arose tomorrow. Lawyers ought, he said, to know who they would call whom they could trust, and what the terms of engagement would be. His suggestion was that every firm should identify at least two providers of software and services and should have reached a framework agreement with them on matters including price and the  divisions of responsibility and liability. Read the rest of this entry »


ILTA Insight 2010: lawyers risk becoming just part of the clients’ process

April 28, 2010

The most powerful single message from ILTA INSIGHT 2010, held in London yesterday, was that lawyers risk becoming merely part of the clients’ processes in a slot marked “insert lawyer here”. Technology must become part of the lawyers’ business processes, and not merely an adjunct to them.

St Pauls CathedralILTA INSIGHT 2010 took place yesterday at the Grange Hotel St Paul’s Hotel. Peggy Wechsler and her team put on an interesting programme, as ever, at an event which always manages simultaneously to be friendly but challenging. ILTA’s scope is much wider than my own specialist subject, e-Disclosure, embracing every aspect of bringing technology to the business of being a lawyer and, in consequence, has a delegate contingent which is wider than I usually see. There is a greater emphasis on law-firms-as-businesses, which tends to be side-lined at pure e-Disclosure conferences. It deserves a place there – the internal decision-making about this aspect of the litigation process should be driven as much by the firm’s own costs as by those incurred by the clients.

The British election has so far not thrown up a single defining slogan, that killer combination of words which simultaneously captures the mood and skewers an opponent. Abby Ewen of Simmons & Simmons came up with one at an ILTA INSIGHT session led by Charles Christian of Legal Technology Insider and the Orange Rag blog. The context was the identification of things which lawyers are good at, as opposed to all those other things which they do as part of their traditional work for clients and to the (relatively novel) idea that they are running a business. Abby said that  “not much of what lawyers do is all that clever stuff they went to university to learn”. It was important, she said, to “try and extract the things which lawyers are not very good at”. The corollary to that is that the clients are only interested in those things which the lawyers are good at, so that they, and the charging rates which go with them, are applied only when necessary. Read the rest of this entry »


Structured data is neither as easy nor as difficult as it sounds

April 26, 2010

Lawyers tend to overlook structured data. If they think of it at all when giving disclosure, it goes into the box marked “too difficult to deal with”. A decision that it is disproportionate to handle it may be right, but “decision” implies that its value has been weighed against cost, which is not the same as just ignoring it. I asked Jim Vint at FTI Technology to give me some examples where structured data was crucial to a case.

In general, lawyers like structure, with its implication of order and of things being in the right place. I do not necessarily mean that they (or “we”, strictly, since I am a lawyer too) prefer that every day is the same from alarm clock to Ovaltine (that is what the civil service is for as a career), but lack of organisation wastes time, and time is money. If you need a library book, your favourite coffee, or a particular iTunes track, then it is helpful to have some degree of pattern and consistency to help you find those of a like kind in a regular place. You expect a library to group its stock by subject and type, and not have law reports, textbooks and periodicals stuffed any old how into random shelves or all over the floor; imagine going into Starbucks and being told that every possible permutation of coffee, chocolate and the rest is in a cup somewhere, but that you must lift each lid to see which is which; you would not appreciate having to scroll down endless lists of iTunes tracks until you find the one you want. We go for the structured stuff every time. Read the rest of this entry »


Chris Dale and Dominic Regan on e-Disclosure at Ely Place Chambers on 12 May

April 26, 2010

Professor Dominic Regan and I will lead a session on electronic disclosure at Ely Place Chambers, 30 Ely Place, London EC1N 6TD on Wednesday 12th May 2010. The event starts at 2.00pm and will run until 5:15pm

The Chambers notice about this event is here . The cost is £80 + VAT, a total of £94. Application should be made to the Chief Clerk, Chris Drury cdrury@elyplace.com.

This is the first of an intended series of talks around the country. Dominic Regan is Visiting Professor of Litigation at City University, and is well-known as a speaker on all aspects of litigation, and particularly on costs. He will talk about the law and I will cover the practical aspects of handling electronic disclosure in a climate which, thanks to the recent cases, brings enhanced risks to reputation as well as in relation to the actual conduct of the case on behalf of the client.

Of particular interest at the moment is the ESI Questionnaire annexed to Master Whitaker’s judgment in Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) (05 November 2009), one of the topics which we will focus on.

Lord Justice Jackson has highlighted the value to practitioners and judges of education in this area, including the benefit of actually seeing some of the types of applications and hearing about the services which are available to help tackle the problems.

We will be accompanied by suppliers of some of these tools and services who will between them cover the different stages of collection, processing and review.

There are practice development opportunities here as well as mitigation of risk. This is a good opportunity to get up to date in an area which is growing in importance.

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451 Group e-Discovery and e-Disclosure report points up the pain of purchasing decisions

April 25, 2010

The 451 Group, Rob Robinson of Applied Discovery, and I each have different roles in the business of spreading information about e-Discovery and e-Disclosure. The 451 Group is a technology analyst company whose business involves in-depth knowledge of enterprise IT underpinned by research into the industry and its players. Rob Robinson remains, as he has been seemingly for ever, the fastest gun in the West (Austin, Texas in fact) at picking up information, news and views across the industry and serving it up in easily digestible form, not least in a weekly list of articles distributed by e-mail and by widely-read resources such as the Posse List’s Electronic Discovery Reading Room. Mine is the easiest role – I have the luxury of writing, in my own time and without regard to journalistic deadlines, about only those things which interest me and which I hope will interest others.

The ideal model therefore, from my point of view, is that The 451 Group does some research and analysis, Rob Robinson and Applied Discovery tip me off about it, and I write about it, adding such comment as seems appropriate, particularly if there is a UK angle to bring in. Read the rest of this entry »


Shoesmith loses judicial review but disclosure candour questions remain open

April 23, 2010

Sharon Shoesmith has failed in her application for judicial review against Haringey, Ofsted and The Secretary of State, Ed Balls. This, as the judge made clear, was to do with the narrow ambit of the judicial review process and says nothing about (or, at least, is not determinative of) the unfair dismissal proceedings which have been stayed pending the disposal of the judicial review. The judgment, a summary of it, and the judge’s remarks are on the Judiciary website. The judge said (in paragraph 546)

The point simply is this: the court’s power to intervene in respect of an administrative decision exists to ensure that it is not made unjustly in the sense that, when a fair process is required, the adoption of an unfair process will operate to undo the decision. For the reasons I have given I have not been persuaded that the grounds for intervention have been made out as against Ofsted and the Secretary of State. Whether Haringey was unfair in the way it dealt with the Claimant’s dismissal (not merely procedurally, but substantively) will, if she pursues the case, be decided ultimately by the Employment Tribunal.

The judge confessed to a “lurking sense of unease” in reaching his decision, partly because of an apparent gap between the statutory powers of a minister in such circumstances and the contractual relationship between employer and employee, and partly because of the particular circumstances of the case. He said as to the latter (in paragraph 543):

If there had been a sustainable case that the Ofsted report had been ‘made to order’ at the instance of, or on behalf of, the Secretary of State and that the results of the inspection were thus either a foregone conclusion or had been manipulated to give grounds for his decision, the outcome of this case would have been different. Suggestions of such dark processes have been made during the proceedings. Ofsted’s inept handling of its obligation of candour during the case may at the time it was revealed have appeared to provide a key to an otherwise locked door. When the further disclosure took place, the suggestions were renewed with greater vigour. However, on the evidence as deployed before me, those suggestions could not be translated into anything of greater substance whatever suspicions, on one interpretation of the material, might have been engendered.

Two appendices relate to the duty of candour point. I do not intend to summarise them in a hurry, but the short point is that the judge intends to pursue certain aspects of the conduct of disclosure with the Treasury Solicitor. Mention is made twice (once in the judgment itself and once in the second appendix) to the Al-Sweady case which I have written about (see Al-Sweady v Secretary of State for Defence: blame for e-Disclosure failures gets personal – and public). It appears that a note has been circulated internally by the Treasury Solicitor as a result of Al-Sweady to remind people about the duty of candour – I guess there may have been another one following Master Whitaker’s judgment in Goodale v The Ministry of Justice (see Goodale v MoJ – a template judgment for active management of eDisclosure). Every law firm responsible for litigation disclosure ought to be producing something similar, and for its clients as well as its own staff.

I suspect that there will be more than article to come about this. I will pull together the points of general application when I have had the chance to read, rather than merely skim, the judgment. Meanwhile, as I have suggested before, keep a copy of the standard form of disclosure statement pinned above the desk and give it a read before you embark on a disclosure exercise, not just as your pen (or your client’s pen) is poised to sign it. It is too late to reflect at that point on what is meant by the duty of candour.

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Shoesmith judgment due today

April 23, 2010

Mr Justice Foskett’s judgment in Sharon Shoesmith’s judicial review application against Haringey, Ofsted and Ed Balls is due to be published at 12.00 today. It will be accompanied by some judicial observations. My own interest, of course, lies not so much in the outcome of the case itself as in the disclosure aspects.

Amongst my predictions for the year was that 2010 will see disclosure failures getting personal, with lawyers and their clients being named and shamed. It is not, I have to say, my weapon of choice in this battle – there are so many positive business reasons for getting the mechanics of disclosure right that it seems a pity to have to emphasise the costs and reputational risks of getting it wrong. The rules run to about five easily-understood pages; the technology is there to be used where it would help; the clients want their litigation run cost-effectively. All we see is people screwing it up in ways which results in someone – often the taxpayer – picking up huge bills for remedying easily-avoided defects. There are marketing opportunities here which make a much more positive message than mere fear of failure.

Wearing my marketing hat, the Conservative Party campaign leaves one open-mouthed with amazement, whatever one’s political affiliations.  We will be mining it for decades as an example of a product beginning with a strong market position and throwing it away day by day. It is not the off-the-cuff stuff which is letting them down – anyone can trip in the unremitting light of media exposure – but the lack of the clear, coherent messages which the times and the “market” require. Sure, any unequivocal message will alienate someone – one man’s reduction in the burden of the state is another man’s job loss – but there are votes to be won simply for offering clear unequivocal policies without compromising the message by trying to please everyone.

There was a nice comment last night on the way Gordon Brown retreats behind a spout of numbers when under pressure . Someone referred to them as “tractor stats”, invoking in two words the the whole Stalinist era of  Five Year Plans and state-led methods of production. Those of you with products to sell may care to look at your printed material and consider how much of it consists of tractor stats as opposed to clear identification of things which actually mean something to the lawyer with a job to do.

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Plenty to do in an ever busier eDiscovery market

April 22, 2010

It is very flattering when people write in to ask if I am all right because they have noted that the number of blog posts is down in a particular week, suggesting as it does that people do not merely read what I write, but look out for it.  It would, no doubt, be a very pleasant life if I could just sit in my office writing carefully-honed articles but, if that was all I did, I would soon run out of things to say. Furthermore, blog posts are not the only written output, and writing is not the only way of meeting my objective of spreading the word about e-Disclosure.

To allay the suspicions of those who may think that I have taken a week off, it is worth quickly summarising what has been going on. It is useful, periodically, to give some idea of the range of activities which promote the subject, because it shows how much activity there is in the market. Read the rest of this entry »


Peer-to-peer networking at the IQPC Corporate Counsel Exchange in Brussels

April 20, 2010

The night before I left for IQPC’s Corporate Counsel Exchange in Brussels, I gave a short talk at an event organised by 7Safe in London. I will write about that separately, but its theme was that we are seeing a greater rate of change in the UK e-Disclosure world than at any time hitherto, thanks to a combination of procedural initiatives and salutary cases. Change is very much in the air in other areas as well – when I went away, the Liberal Democrats were a joke with no hope of a role in government; by the time I came back, they were a joke with a serious prospect of a role in government. The expression “change is in the air” acquired additional resonance when another minority entity thought to be capable of zero impact managed to bring the entire world to a halt. As the current joke has it, it is cash we want from Iceland, not ash. My wife and I came within a hair’s breadth of falling victim to the latter. Mary Ann, sensibly, took it for granted that we would travel by Eurostar and, in her role as my travel department, and in that no-nonsense way which women have, was poised to make the booking. Wait, said I, in my male, have-we-considered-every-option? way, we should check out the flights. Fortunately, anything that BA had to offer was both more expensive and more inconvenient than the train, even before Iceland intervened.

I was busy down to the moment of leaving home, and had not begun to focus on the implications of the volcano. I assumed that the long queues at the St Pancras Eurostar terminal comprised people keen to get away before the Lib Dems took power (if you think that New Labour loves interfering in our lives, wait till you see what inherent contradictions lie in the two words which make up the name “Liberal Democrat”). Uniquely amongst British public transport ventures, Eurostar just works. Uniquely also, the St Pancras terminal combines aesthetic pleasure with practicality – c.f. the Brussels terminal which has been apparently been designed deliberately to be as ugly and inconvenient as possible, inside and out. Our choice of hotel was another example of the triumph of female instinct over the curious male need to weigh every option. It took Mary Ann about ten minutes to light on the Stanhope Hotel, and a further two hours, at my insistence, for us to examine every alternative and read all the reviews before booking – at the Stanhope.

Incidentally, I just loved the notice on the hotel website offering a “10% kickback on conferences”. I am sure that “discount” was the word they were after, but the subconscious message sent out by using “kickback” just yards from the heart of the EU’s Parliament and bureaucratic centre, was perfect. Read the rest of this entry »


Cable & Wireless beats off Digicel claims

April 16, 2010

Cable & Wireless has beaten off Digicel’s claim that its entry into the Caribbean telecoms market was deliberately and wrongfully blocked by Cable & Wireless.

According to an article in the Guardian, Cable & Wireless Communications wins legal war with Digicel (thanks to Dominic Regan for pointing me to this) Digicel succeeded on only one head of claim, with damages assessed at just £2. The newspaper also reports that the costs bill to be picked up by Digicel will be £25 million. I am never clear where newspapers get these figures from, but it is reasonable to suppose that the number will be a large one.

For those of us interested in electronic disclosure, the final outcome of the case is of less significance than Mr Justice Morgan’s judgment of October 2008 in relation to Digicel’s applications for specific disclosure. The judgment records that £2 million had been spent by Cable & Wireless before this before the judge ordered that existing searches be redone using his choice of keywords and that Cable & Wireless should immediately have discussions with Digicel about giving disclosure of 800 backup tapes. Whether or not that figure is right, there must have been considerable wasted costs to say nothing of time. Read the rest of this entry »


Cowen Group survey shows US e-Discovery workload and jobs increasing

April 16, 2010

It is always hard to know what weight to attach to anecdotal evidence about the litigation and e-Discovery market place. I personally take notice of sniff-the-breeze impressions derived from the people I talk to and what I read. It is fair to say, however, that most of us rate our own ability to detect trends, right down to the moment when someone invites us to give investment advice based on that gut feel. One’s reluctance to go that far does not invalidate an intuitive feel, but that intuition is no substitute for hard facts.

Even hard facts fall into different categories: actual instructions given to lawyers or signed contracts for the supply of litigation software or services are not necessarily publicised and, even if they are, the task of assembling sufficient data to point to a trend is non-trivial. One step back from that, in terms of statistical value, are the results of surveys of representative elements in the marketplace. Even then, however, one needs to be cautious. Who is asking the questions? Were the questions framed in a way designed to elicit one answer rather than another? Do the respondents have a motive for weighting their answers in one direction or another? At least if you ask the questions yourself, you can evaluate all that by applying those subconscious filters which take body-language, tone of voice and similar subliminal factors into account in considering an answer. Read the rest of this entry »


Al-Sweady v Secretary of State for Defence: blame for e-Disclosure failures gets personal – and public

April 15, 2010

The Court of Appeal has castigated a Minister, the Treasury Solicitor, and a serving army officer by name, for disclosure failures in a judicial review application derived from the Iraq war. You do not need such an elevated cast of players nor so important a subject for such a public humiliation to be visited on you.

I suggested in one of my turn-of-the-year predictions that 2010 would see individuals, both from clients and from their lawyers, being named personally in judgments about failures to give disclosure properly. I had in mind the judgment in Earles v Barclays Bank Plc, and suggested that those charged with disclosure might care to consider the possibility not only that their firm’s name might appear in the same paragraph as the word “incompetent” but that they might have a walk-on part of their own. We have yet to see the judgment in Shoesmith v Ofsted & Ors, but it is reasonable to expect that some stronger word than “incompetence” will appear in relation to named individuals responsible for a disclosure exercise which not only failed to uncover seventeen very relevant drafts of a key report, but which included an instruction to delete all documents containing highly material keywords. It is unlikely, you would think, that a personal reputation could sink lower.

If you think that, take a look at the judgment in Al-Sweady & Ors, R (on the application of) v Secretary of State for the Defence [2009] EWHC 2387 (Admin) (02 October 2009) and at what is said about the principal witness on disclosure matters for the Ministry of Defence:

Accordingly, if [insert your own name here] continues to be put forward as a principal or even a significant witness in judicial review proceedings or if he is in any way responsible for disclosure, it is our view that any court seized of those proceedings should approach his evidence with the greatest caution.

I would work quite hard to ensure that the name in that sentence was not mine. Read the rest of this entry »


Marketing political parties is like marketing anything else

April 15, 2010

No one interested in marketing could fail to appreciate a British general election. I do not disguise my own political affiliation (broadly described as “anything but Labour”) but I will both try to be even-handed in my observations on the campaigns and to stick to subjects which have some bearing on my main theme. That sweeps up not merely the art of marketing but things to do with privacy, data protection and information security. My sweeper commitment is to try and help my non-UK readers understand something of British culture to the extent that it affects those who do business here. That gives me a pretty wide range.

Let’s start with Labour, and a nice crossover between marketing and the misuse of confidential information. Last week, Labour sent 250,000 leaflets to women whose names appear to have come from an NHS database of cancer patients. They followed that up by writing to hundreds of doctors, using their work e-mail addresses only available from an NHS database, and urging them to sign a letter of protest about alleged Conservative plans for NHS cuts. The fact that the said plans bear no relation to anything announced or even hinted at by the Conservatives is neither here nor there – misrepresenting your opponent’s position is something all the parties do – but using contact information which is only available to the government, and which is confidential, is not on. Any marketing benefit was immediately wiped out by the adverse comment from all sides. Read the rest of this entry »


Hear Master Whitaker at ILTA INSIGHT 2010 on 27 April

April 14, 2010

ILTA INSIGHT 2010 takes place on 27 April at the Grange St Paul’s Hotel.  INSIGHT 2010 is ILTA’s 5th annual event in the UK and brings a pocket-sized and UK-focussed version of the excellent main ILTA conference, which I go to every year in the US.

It is an opportunity to hear from leading technologists and business strategists, from the UK and the US, who will share their expertise on matters of great interest to the legal profession. The main event so far as I am concerned (I am allowed to say this in an e-Disclosure blog) is a session called Technology as a Component in Lord Justice Jackson’s e-Disclosure Recommendations in which Senior Master Whitaker and I will discuss the technology aspects of e-Disclosure developments in England & Wales. In this area of case management, you cannot separate the operation of the rules and the use of technology – you have only to look at Master Whitaker’s own judgment in Goodale v Ministry of Justice (I wrote about it in Goodale v MoJ – a template judgment for active management of eDisclosure) to see that some understanding of the available technology solutions is required by judges and practitioners alike. This point was made by Lord Justice Jackson in his recent Report on Litigation Costs, whose only express recommendation on the subject was for education. The Jackson Report, the proposed new Practice Direction and ESI Questionnaire (the latter was annexed to the Goodale judgment) and some other recent cases will all be covered in our session.

There is plenty else going on, as the ILTA INSIGHT brochure shows. Other sessions include: The Evolution of Office, Traversing the Generation Divide, Business Processes (BPM, BPA and BI), The Future of the Traditional Desktop, 21st Century Collaboration, the Electronic Working in the RCJ, Electronic Evidence – Preservation to Production, and a presentation by LITIG on their Review of Case and Matter Management Systems.

There is no fee for law firm and law department professionals to attend this event, but space is limited.  Registering online at www.iltanet.org/INSIGHT2010, or by e-mail to Peggy Wechsler at peggy@ILTAnet.org.

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Reminder: 7Safe eDiscovery networking event tomorrow

April 14, 2010

A reminder that 7Safe are hosting an eDiscovery networking event tomorrow evening at the The Hoxton Hotel, 81 Great Eastern Street, London EC2A 3HU at 6.30pm.

I will be giving a brief overview of the many developments which are going on at the moment – see my original post about this here. The rest of the evening involves just eating, drinking and talking in congenial company.

I look forward to seeing you there.

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IQPC Corporate Counsel Exchange in Brussels 18 – 20 April

April 12, 2010

I am off to Brussels at the weekend for IQPC’s Corporate Counsel Exchange. The format for this conference is rather different from the conventional series of panel discussions and platform speeches – there are plenty of these, but the primary purpose of the event, as its name implies, is for the exchange of ideas rather than merely their promulgation. The speeches and panels serve as the catalyst for business meetings and round-table discussions.

This format seems to be appreciated both by corporate counsel on the look-out for ideas and answers and for those who have software and service solutions to offer. Amongst the latter are Epiq Systems, Trilantic, Kroll OnTrack, Applied Discovery, Clearwell, LexisNexis and Wolters Kluwer, who should between them cover pretty well all the bases.

I am going to it for various reasons, none of which, for a change, is a speaking commitment. This session which interests me most is a case study led by Greg Wildisen and Mike Brown of Epiq Systems and by Vince Neicho of Allen & Overy. The title is Your company has just been raided and an investigation is under way. Have you an effective strategy to focus your resources on only the most relevant documents? Read the rest of this entry »


LSB OK for BSB’s ABSs and LDPs under the LSA – what does it all mean?

April 10, 2010

I don’t really do cutting edge when it comes to reporting legal developments. Sometimes there is a story worth running on the day – one software supplier buys another, or an important judgment comes out. Occasionally I get a tip-off and have the story ready to publish as it happens, like the Ofsted one a few days ago. For the most part, however, I am content to let things happen, assimilate the comments of others, dig out some original sources, and try and fit it all into a context relevant to case management or e-discovery.

One development which has been on my To Do list for a while is the growing possibility that barristers might overhaul solicitors in getting on top of electronic disclosure. It has long been foreseeable that clients would begin to challenge the historic model for handling litigation documents; that model involves the solicitors requiring that the clients hand over their documents, which the solicitors then search through both for evidence relevant to the issues and for disclosure purposes.  The conventional solicitor approach to this is to throw waves of assistants at the problem, like Douglas Haig at the Somme, whilst lobbing bills at the client. That approach is dying, mown down by the twin enfilade of client resistance and the growing realisation (elegantly expressed by Lord Justice Jackson) that “proportionate” and “necessary” do not mean the same thing when you come to consider questions of costs. Read the rest of this entry »


Substantial e-Disclosure figures exercise for charity

April 10, 2010

Andrew Haslam of Allvision and Nigel Murray of Trilantic have one or two things in common: they are both long-time and well-known figures in the UK e-Disclosure scene, and are both figures of substance in more ways than one, usually to be found in some hostelry with evidence of their taste for good food and drink both in their hands and about their persons. In case New Labour has passed some law prohibiting such comments (it is hard to keep up), I should say at once that both of them are on record as saying the same about themselves. Both are in training for charitable causes involving uncharacteristic exercise.

On 15th May, Andrew and his wife Ann (Ann Hemming for those who know her only in her professional capacity) will be walking 40 kilometres (that is 25 miles) in memory of Jackie, partner of Kelvin McGregor-Alcorn, who died in January from a very painful spinal cancer.  In her final days Jackie was cared for by the Heart of Kent Hospice in Kent – run by MacMillan nurses – and Andrew and Ann are hoping to raise money for them.

The web site that tells you all about this is at: www.40katgoodwood.org.uk/home and you can donate on-line at www.justgiving.com/40katgoodwood

It is a little unfair to say of Nigel Murray that his exercise is uncharacteristic since this is the second year in which he has cycled hundreds of miles across France in a good cause. That cause is again Help for Heroes and the distance this year is 375 miles over six days, from Le Havre to the Second World War port of Dieppe then inland through the First World War battlefield regions of Amiens, Arras and Ypres before finishing at Dunkirk to coincide with the 70th Anniversary of the evacuation of our troops in 1940. Details of the route can be found at http://nigelmurray.blogspot.com/. You can sponsor him at at www.justgiving.com/nigel-murray.

Nigel’s training regime will presumably be as tough as last year when, to everyone’s surprise (including, I half suspect, his own) he stuck to it. I recorded that I had only ever once seen him break into a trot, and that was across a pavement and into a taxi in the rain. I heard it suggested last year, rather unfairly I thought, that more money might be raised by betting against him succeeding, but the bookies would have been the winners since Nigel did indeed finish the course.

Andrew Haslam reports that his and Ann’s training began with a gentle six mile walk into Cardiff down a “nice solid path, slightly downhill all the way” followed by rugby, alcohol, meat pies and burgers. I was suitably impressed until I realised that they had merely watched the rugby and not actually taken to the field themselves. The rest, meat pies and all, was billed as part of the training.

It is what happens on the day which counts, not the training. These are both good causes and I commend them to you.

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Ofsted has shown us WHY we should collect data properly and now lawyers must find out HOW

April 9, 2010

We do not yet know if Ofsted’s failure to give proper disclosure in the Shoesmith litigation was the result of cock-up or conspiracy – I am hedging my bets and assuming both that Ofsted fouled it up and that the government interfered to spin the story they needed. What matters is that the world now has a very public example of why a proper collection of documents is necessary. The next step is to explain how to get it done. A new video about EnCase Portable helps to get the message across.

As you may have gathered, I am resistant to the use of words like “revolutionary” when applied to products in the litigation support market. Most of the best products are, in fact, simply the latest iteration of a tried and tested product whose new features represent quiet and steady evolution rather than anything as exciting as a “revolution”. From my own years of selling software, I know that anything which suggests revolutionary change tends to alarm rather than excite, particularly if the audience includes lawyers. Revolution makes them think of tumbrils or Bolsheviks and the loss of an exclusive authority as power passes overnight to the masses – not the sort of thing lawyers go for at all.

What about the situation, however, where they are the masses and there is an opportunity for them to take power from a yet more exclusive group? I was talking along these lines to a couple of lawyers from a go-ahead regional firm a few days ago. I have come across them at various e-Disclosure-related functions, and they are a model for the kind of firm which is in a position to win work either by taking it away from other firms or by creating new areas of expertise in-house. The immediate context was the urgent collection of data, and I suggested that every firm ought to have a copy of Guidance Software’s EnCase Portable and the in-house skill to use it. I made it clear that I was not advocating that firms of any size should routinely handle all their own data collections, but that there are often circumstances when the ability to collect modest amounts of data – perhaps from a client’s laptop there and then – could save much time and expense and, indeed, could save a case in some circumstances. Read the rest of this entry »


Jonathan Maas joins Ernst & Young

April 7, 2010

Jonathan Maas has joined Ernst & Young as an Assistant Director in its Forensic Technology & Discovery Services team in London. This is good news for both of them. It is also good news for the development of electronic Disclosure in the UK – Jonathan is one of the best advocates for the subject, and the conjunction of his ability and experience with the team which Paul Walker and Sanjay Bhandari have built up at Ernst & Young is a force for good in the market which it is my job to promote.

I first met Jonathan in 1993 when he managed the litigation support team at Lovells when I went there to demonstrate some litigation support software which I had written. I did not manage to persuade Lovells to buy it, but Simmons & Simmons took it, and it was in use there when Jonathan moved to Simmons in 1994 as their first litigation support manager. He was a demanding task-master on the projects which we did together before he moved to DLA Piper as their Head of Litigation Technology in 2006, but those were the years when I developed my skills as a hands-on litigation support consultant, and S&S was a good client to have.

Jonathan is best known, though, for his role in the LiST Group, a high-level think tank of London-based litigation support managers. He was in the LiST working groups which, between 2004 and 2008, drafted a Practice Direction for the use of IT in Civil Proceedings, a Data Exchange Protocol, a Technology Questionnaire and a revised form of Disclosure Statement. It is LiST’s work which got me interested in the rules as the best mechanism for encouraging the take-up of electronic methods for handling electronic data. As a supplier, which I then was, I was disqualified from membership of LiST and its working groups, but was actively involved in the consultation phases. That experience led in due course to my membership of Senior Master Whitaker’s working party whose draft Practice Direction and ESI Questionnaire owe much to the earlier work of LiST (not least because three other LiST veterans were also members and Master Whitaker is that group’s honorary president).

Jonathan’s role at DLA Piper curtailed his ability to spend time on LiST and on the development of court-driven ways of managing e-Disclosure. He disappeared from the conference scene in which he had been an active player on both sides of the Atlantic, which was DLA Piper’s loss as well as ours. What is remarkable, however, is that his name persisted in the market as one of the key people to make contact with over the four years for which he was effectively off the field.

It seems unlikely that his talents as one of the most recognisable faces of international e-Discovery will be wasted at Ernst & Young. The team there has been built up steadily over the three years since Paul and Sanjay joined E&Y, and my outsider’s perception has been that the team was ready for an outward facing, client-getting big name to help promote E&Y’s strengths in investigations and dispute services. There are not many faces in the market which stand out in the crowd.

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Marketing: put yourself in the position of the putative punter before publishing

April 6, 2010

Marketing legal IT solutions has more in common with marketing a political party than one might think – the product in both cases is something which the target audience would like to be able to do without, and all the products look the same from the perspective of the uncommitted would-be buyer. In both cases, the “suppliers” all suffer from the adverse impression left by the others, and in both cases, overall impression matters more than the detail. The advertisers need to give more thought to the arrival of the message as well as the delivery – what does it sound like to the would-be buyer?

My recent article Using marketing to make people hate you brought me concerned messages from two companies who thought that I was aiming at them. Both of them, as it happens, are people who produce marketing material which is the more useful for being restrained and to the point and, as I assured one of them, if I had strong views about the marketing material of anybody known to me, I would tell them, not the world.

Meanwhile, my primary target in that post, the US translations company which is crowding out the limited attention span of the e-Discovery market, continues to pour its dross into our inboxes. The record is four Google alerts about them in a single message, each as badly written as the last. I hope they get a contract soon, as in someone taking out a contract on them. Read the rest of this entry »


eDiscovery April Fools

April 1, 2010

I have already written about Applied Discovery’s Reviewitter.  CaseCentral came up with the first eco-embedded, carbon-neutral, green platform for environmentally efficient eDiscovery. Good stuff, albeit slightly undermined by the fact that so much verbal effluent is tossed out into the ether by the green lobby that it defies parody.

Clearwell, who have form in this area, have managed to take advantage of the near-coincidence of the iPad’s launch and All Fool’s Day to produce a video called Clearwell for the iPad. Funny for itself, it also sends up all those words which I hate in press releases – the words “a magical, fantastic, awesome, earth-shattering, revolutionary device” could have been lifted almost verbatim from some PRs which I have seen which did not have the excuse of inclusion in a parody.

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Ofsted altered report against Shoesmith and ordered deletion of documents

April 1, 2010

The title of the BBC report about the Sharon Shoesmith / Ofsted / Ed Balls disclosure row now reads Ofsted changed Shoesmith report. The documents in the BBC’s possession also apparently show an instruction to delete documents relating to “Baby P” or “Haringey”.

As to the editing, the fact that an important report went through multiple drafts is not itself surprising. What matters, in the context of disclosure obligations, is what drafts existed at the moment that litigation appeared likely, what happened to the preceding drafts, and what evidence exists within any of the surviving versions as to changes made to them? Even in an ordinary case, all this leads up to the main question as to what documents existed or ought to have existed, and in what form, when the cause of action arose. Here, there is an added element, because the changes included a clear and consistent trend – they worsened the conclusion against Shoesmith. The BBC article has examples. Read the rest of this entry »


Germany focuses on data protection and privacy

April 1, 2010

Americans may be tempted to think of EU data protection and privacy laws as being an obstacle deliberately placed in the way of conscientious US lawyers who are merely trying to do their job. That reaction is unsurprising, since that is the context in which they come across a set of laws which are remote from their domestic experience. It may help if I point you to four recent articles about Germany, only one of which has a direct connection with electronic discovery. The others may serve to provide a context. Read the rest of this entry »


Ofsted report was “beefed up” to remove Shoesmith

April 1, 2010

The Guardian newspaper is the first to carry a substantive report following the release today of papers relating to Ofsted’s late disclosure of documents in Sharon Shoesmith’s action against Haringey, Ofsted and Ed Balls – see Baby P report on Sharon Shoesmith ‘was beefed up to remove her’.

It does not appear that they have yet had the chance actually to read the newly-released documents, and most of the report is based on what Shoesmith’s lawyers have said about them. Read the rest of this entry »


Applied Discovery launches Reviewitter – a new review tool for e-Discovery

April 1, 2010

Today, 1 April, Applied Discovery announces the launch of a new review tool. Called Reviewitter, it is designed to allow the truncation and review of unstructured data into 140 character reviewable documents. The press release carriers an endorsement from Greg Bufithis of The Posse List, no less, who predicts that these “tweets” should “spur accelerated investment and uptake in similar tools that can help streamline the entire discovery process”.

Applied Discovery have helpfully provided a link which explains the choice of date. As technology advances, it becomes increasingly difficult to discriminate between real applications and those which do not (yet) exist. I have not seen today’s Times, but it has for many years carried advertisements for BMW on April 1st which sometimes take more than one reading to understand. Many years ago, for example, they had one for windscreen wipers which operate automatically when water landed on the windscreen. Ho, ho, we said, clever joke – but it did not take long for the technology actually to exist. Part of the joke, of course, is that Germans do not really understand joking as a social form. Read the rest of this entry »


More coming on the Shoesmith – Ofsted – Balls e-Disclosure fiasco

April 1, 2010

We do not really do breaking news here, but rumour reaches me that we may hear more today about Ofsted’s disclosure failures in Sharon Shoesmith’s application for judicial review of the decision to dismiss her. Even as I write, apparently, journalists are ripping open packages with papers which may help us with all those unanswered questions.

My original article on it was called The Baby P case may be the disclosure story of the year, and you may care to refresh your memory about that whilst we wait to see what emerges.

Is this just routine incompetence of the kind we expect from our bloated public services (48% of GDP went on them last year)? Is it just ignorance of and disdain for the formal obligations of candour which the rules require and which apply particularly to disclosure? Perhaps it is that curious perception that electronic documents just don’t count somehow – we don’t understand them, so let’s just pretend they don’t exist or somehow fall outside the definition of a “document” in Rule 31.4 CPR – “anything in which information of any description is recorded” seems pretty clear to me, but I am not a civil servant. Were documents really “stuck in the photocopier”, or did someone use the shredder instead? Did they really print all the emails off and photocopy them?

And, even more interestingly, was there really an instruction to destroy documents which might have pointed to an earlier draft Ofsted report whose terms were not what Ed Balls, the ghastly and overbearing Children’s Minister, wanted? And if so, whence did those instructions come?

Bang on cue, here comes a Google alert to tell me that the papers have reached the media. Off to do some reading – more later.

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