International eDiscovery Panel at CEIC

There is one major difference between the general run of discovery problems and those relating to international and cross-border discovery. The former are soluble – competence and co-operation coupled with judicial management would fix most ediscovery problems tomorrow; the trans-jurisdictional issues involve serious conflicts, not just of laws but of culture. As things stand, these seem irreconcilable, and it sometimes feels that the best we can do is to make people aware of and sensitive to the issues.

The panel assembled to discuss these matters at CEIC was well-qualified. M James Daley of Daley & Fey, LLP is Co-Chair of The Sedona Conference Working Group on International Electronic Information Management, Discovery and Disclosure (WG6) and a member of a delegation which recently met with the Article 29 Working Party in Brussels (see my article Sedona Conference WG6 presentation to Article 29 Working Party in Brussels. Dominic Jaar of Ledjit Consulting Inc., is Chief Executive Officer at Canadian Centre for Court Technology and is a member of The Sedona Conference’s working groups 1 (USA) and 6 (International). George Rudoy of Shearman & Sterling, LLP has more practical experience than almost anyone of managing and doing foreign data collections. Patrick Burke of Guidance Software was the moderator.

Judicial ediscovery comparisons at CEIC

I did a short summary piece about two of the sessions which I attended at CEIC in Las Vegas (see CEIC comes to an end), promising to expand on them when I got home. I am not quite home, sitting instead in a bus in a traffic jam caused by the dysfunctional UK Highways Agency. Lawyers who create work for themselves by deliberately stringing out the job have nothing to teach the job-creationists who constantly fiddle with road layouts to keep their pay and pension contributions rolling in. “Delays possible until July 2010” says the notice, rather too ambiguously for my taste.

Barely a week after moderating a US-UK judicial panel at IQPC in London (see IQPC the best London e-disclosure conference again), Patrick Burke of Guidance Software was in charge of one at CEIC in Las Vegas. Is it proper to call a judge a “common element”? Probably not, so I will say instead that Master Whitaker took part in both. The home team comprised US Magistrate Andrew Peck and Hon Judge Donald Shelton.

I have already quoted Judge Peck’s uncompromising assertion that incompetence, lying to the court or failing to co-operate are behind most sanctions decisions, and that 80% of sanctions decisions involve failure to preserve. By Rule 26f, parties are supposed to talk about the structure of discovery. The current rules say nothing about preservation except talk about it. That is too late. The recent Duke Conference had reached a consensus about the need to amending rules.

CEIC 2010 comes to an end

CEIC 2010 is winding down here in Las Vegas. Whatever measure you take – the quality of the sessions, the opportunity to catch up with people and meet new ones, the sheer numbers of people attending (1,300 or so), the venue, or the glimpses through the bus windows of this not-quite-real city on the way back from dinner last night – it has been a great success.

For those unfamiliar with it, CEIC stands for Computer and Enterprise Investigations Conference and is run by Guidance Software, whose data collection and processing applications are used all over the world for everything from one-off defensible collections to enterprise-wide network collection applications and the consultancy which goes with it. My particular interest, electronic discovery, is only a part of what the applications are used for – internal investigations, HR incidents, government and military needs, and rapid reaction to external or internal demands for information, are all covered. It is deeply technical stuff, and its users need technical training to match. CEIC allows all those involved – from hands-on lab types to decision-makers – to gather once a year, to top up their skills, to meet others with the same or adjoining skills, and to find out what drives the other players. The technical people increasingly need to know about the context in which they collect data, and those who devise strategy must have some idea of technical difficulties and solutions.

Missing my Dragon

Jonathan Maas of Ernst & Young says that I missed  a trick in my account of the laptop which died en route to Las Vegas and which I had to replace and set up in order to do a webinar (see Keeping at work in the Cloud from Las Vegas. I had explained that the reorganisation of my data on the plane had made it possible to save a copy of it on to a USB stick in the short period between booting up my laptop and it closing down through over-heating. Jonathan said:

I’m surprised you didn’t use the ease of transfer of your recently ordered files from your old to your new laptop as hands-on proof of the benefits of ordered disclosure from a corporation’s prepared IT infrastructure!

Party with a purpose at the poolside

I am told that there is record attendance at CEIC 2010 here in Las Vegas. Putting it like that implies no doubt on my part that the claim is correct, but this place is so vast that you could lose half the UK civil service (there’s a nice thought) in it, so assessing headcount by eye is quite difficult.

The numbers became clear at the welcome reception last night, the biggest poolside party I have ever attended (not that poolside parties on any scale are that common in Oxfordshire).  You get some idea of it from the photographs.

Last night it was packed, with endless supplies of good food and drink. The quality of the company matters most, of course. There seemed nothing incongruous about discussing with a US Magistrate Judge (Judge Andrew Peck) the implications for US interests of Gucci v Curveal in such surroundings, or catching up with software company CEOs, like Victor Limongelli of Guidance Software, Eddie Sheehy of Nuix (whom I saw in London last week and will see again in Sydney in a few days time) or Andrew Sieja of Relativity, perhaps the only boss of a world-class software company who sits personally at a keyboard puzzling out how to make the search experience better for users.

Manual discovery is like herding steers down the Strip

I hope I never tire of the wonders of all this technology or cease to be amazed by what one can do with it. It is more than 100 years since the Wright Brothers flew at Kittyhawk, and I travel more than most, but I still marvel at the idea that a large box with wings can bring me to Las Vegas, itself only founded as a city in 1905, two years after Orville Wright left the ground.

If the foreground in the view from my 19th floor hotel room suggests that progress is not uniformly for the better, the upside is the further view of the hills beyond. To mourn the fact that Las Vegas is no longer “The Meadows” which gave it its name is like regretting that disclosure / discovery no longer involves tactile intimacy with paper.  The city has doubtless lost something now that no-one brings cattle down to the river, just as some lawyers regret that “documents” are now electronic and come in volumes matching the population growth here since 1905, but life moves on. There is a new instant motto for you – “manual discovery is like herding steers down the Strip”.

Keeping at work in the Cloud from Las Vegas

I have been here in Las Vegas a little over 24 hours. So far I have been asked by a cop if I have been arrested before, and been blatantly short-changed in Starbucks; I have been to one tourist attraction where the weather was so fine that we could not reach it for the crowds and then immediately to another where the weather was so vile we could see nothing. Oh, and my laptop, my mobile office equipped for every eventuality, has died on me and I have a webinar to do on Tuesday. Things can only get better.

IQPC the best London e-disclosure conference again

The three-day IQPC Information Retention and eDisclosure Management Summit is over for another year. It is the biggest and best conference in the London calendar and one which genuinely aspires to do better each year. Everyone I spoke to seemed to think that it had achieved that aspiration.

I have to be careful here. I am on its advisory board and was involved in some of the planning going back to a late-night session in a Brussels hotel bar last October. I also clocked up 8 hours on its platforms this year, so I am perhaps not wholly impartial. It has the greatest concentration of people interested in e-disclosure, from judges to suppliers to lawyers to clients, and is the place to be for someone whose job involves carrying information between these players. My main interest lies in talking to people, which inevitably means that I attend few sessions beyond those in which I am involved. The loss is mine – there was a packed programme of important and interesting subjects and anyone with a stake in electronic disclosure would have benefitted from being there.

Monday was a workshop day. I took part in a three-hour session run by Legal Inc called Ready for the Regulator: the importance of equality of arms. It was led by Vince Neicho of Allen and Overy who, characteristically, had left nothing to chance in our preparation. Bill Sillett, an enforcement officer at the Financial Services Authority, had provided a scenario which was no less plausible for involving almost every aspect of an FSA investigation – what started as an apparently routine matter grew into a multi-jurisdictional one with criminal implications, SEC involvement, and a potential conflict between the company and some of its employees. Antony Montague, Associate General Counsel at McGraw Hill Companies, Matthew Davis, Litigation Support Lawyer at Hogan Lovells, Peter Cladouhos, Practice Support Electronic Discovery Consultant at Paul, Hastings, Janofsky & Walker LLP, and I brought our respective professional inputs to this scenario, with Vince as an able narrator and an audience which caught the spirit of the thing and joined in. If we ran out of time before we run out of script, that was because the audience was sufficiently involved to take us down useful byways. The main take-away for me was the confirmation that the FSA looks well on those who are both willing and able to co-operate at a data level as well as at a higher factual level.

IQPC: I heard your judges’ panel blew the doors off the joint

The quotation in my heading just came in from Gregory Bufithis of The Posse List. The reference is to the judicial panel yesterday at IQPC in London comprising (alphabetically) His Honour Judge Simon Brown QC, US Magistrate Judge John Facciola, Chief Magistrate Judge Paul Grimm, Lord Justice Jackson, Magistrate Judge Elizabeth LaPorte and Senior Master Whitaker. Patrick Burke of Guidance Software moderated and I opened the batting with a short introduction on the importance of international debate and discussion about electronic disclosure / discovery.

We got good feedback at the time, but if the word out there is that the panel “blew the doors off” then that is as good as an endorsement as we could want.

My own account of the event, including that panel, is proceeding slowly, not much aided by all the other things to be crammed into the two days which elapse between that conference and leaving for CEIC in Las Vegas on Saturday, nor by the eight hours I clocked up sitting (or standing) on panels, 4.5 of them yesterday. I stupidly forgot to pass my camera to anyone, so I have no photographs of that panel. Here in the interim is one from the Mock Disclosure Applications which we did at the end (thanks to Nick Pollard of Legal Inc for taking these for me).

The picture shows Judges LaPorte, Facciola and Grimm playing a composite judge called Fluffy, me as narrator, Steven Whitaker and Simon Brown as solicitors involved in e-disclosure applications, and Patrick Burke, in this scene as a salesman from The EDD Coalition explaining how two suppliers who hate each other have joined forces, looking and sounding the same in order to get more than 50% of the market – it works for politics, he is saying. Fluffy, the solicitors realise too late, is not a soft touch but a three-headed monster, as they would have realised if they had read Harry Potter and the Philosopher’s Stone.

That was the fun bit at the end of an intensive and extremely interesting three-day conference. My account will appear shortly, and others, I hope, will be covering the sessions (most of which, as usual, I either failed to record because I was in them or missed because I was engaged in useful conversation outside).

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Nigel Murray cycles to Trilantic’s new Dubai office

There is a photograph on Nigel Murray’s blog which appears to show that he has been cycling to work. Given the present state of air travel, this may be the most sensible method, even if you live in England and your office is in Dubai.

If you read it more closely, it becomes clear that Nigel was merely cycling in Dubai rather than to it. He was there in connection with Trilantic’s new Dubai office, and took advantage of the flat terrain to put in some miles towards his training regimen. The latter is needed because Nigel is again cycling across France in aid of Help for Heroes.

The journey starts on 24 May and the itinerary takes in Caen, Dieppe, Amiens, Arras, Ypres and Dunkirk, 350 miles in all. These are all places which I would like to see or see again, and I would be there but for a prior engagement in Las Vegas where CEIC takes place in the same week.

Nigel’s target was £2,200 and he has already raised £3,066. If you wish to contribute to this impressive total, you can do so here .

Good luck Nigel.

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A week of change in e-Disclosure as well as in politics

It is not often that you look back over a week or so and know that you will always remember it. Eight days ago, we had the same government as we had had for 13 years; now, not only the government but the face of politics has changed for ever. After years with almost no e-disclosure cases at all, two were  reported last week which we will refer to for some time. I have done two sessions with lawyers from which I have emerged confident that the messages are striking home.  At a more mundane level, all next week’s conference sessions now have plans or scripts and the travel arrangements for the next round of conferences are falling into place, or were before ash and strikes threatened. Last Thursday seems a world away.

Court of Appeal declines to overturn specific disclosure judgment in Fiddes v Channel 4

Those interested in judicial management of disclosure might like to look at the judgment of the Court of Appeal in Fiddes v Channel 4, delivered on 24 March but published on BAILII only on Friday.

The case is interesting for several reasons: it is an e-disclosure case; it is a libel case, thus showing that e-disclosure pops up everywhere; it involves the other Jackson, the late Michael; it considers questions of proportionality where the cost (in this case of examining backup tapes) is balanced against the likely value of what might be recovered. More important than all this, it shows a Court of Appeal upholding a judge’s decision although far from convinced that they would have arrived at the same conclusion as he did.

FTI Consulting partnership makes Late Shift possible for National Portrait Gallery

It is not just e-Disclosure which needs to find wider audiences. Institutions like the National Portrait Gallery also have to make their displays more accessible. The word “accessible” acquired politically correct connotations in the New Labour years, with public funds being handed out or withheld by reference to minority quotas rather than to actual need or interest. In more useful terms, accessibility often comes down to places being open outside normal working hours.

That is part of the rationale for the National Portrait Gallery’s Late Shift initiative which allows it to stay open on Thursdays and Fridays until 9:00 pm. The NPG has set up a partnership arrangement with FTI Consulting to facilitate this, and there was a party at the gallery last night at which FTI were the hosts.

Video illustration of forensic collections tool

I am always looking out for new ways of getting to wider audiences. Although you cannot beat actually talking to people, the Internet offers other ways conveying information.

Forensics collection experts 7Safe have produced a video about their data collection application 7Phrase. If you are unclear what forensics collection means, this is a quick and easy way to find out.

It is interesting to note that it is the data collection people who have got their act together on alternative ways of reaching new markets. I wrote recently in an article about data collections about a video produced by Guidance Software demonstrating possible uses for EnCase Portable. Where are the rest of you, with new ways of telling us about your products?

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Imminent reform in prospect for Australian discovery process

Reform of the discovery process in Australia is said to be “imminent”, according to an article in the New Lawyer. The article says that the Attorney General has asked the Australian Law Reform Commission to explore options to promote the early and proportionate exchange of information and evidence in court proceedings with an emphasis on the role of the courts in managing discovery by using their case management powers. My thanks to Simon Price of Recommind for drawing my attention to the article.

The article refers to the experience of international jurisdictions. Those of us concerned with improving the court process are enthusiastic about the exchange of ideas between jurisdictions, particularly where the system of law is similar to ours. Lord Justice Jackson visited Australia as part of his fact-finding tour before writing his Preliminary Report, and we studied the Australian Electronic Technology Practice Note CM 6 when drafting our own new practice direction and Questionnaire.

Recommind webinar: Technology is Changing the Economics of e-Disclosure, Are You Prepared?

My title is the name of a webinar which I am doing with Jason Robman of Recommind on 25 May. Its description reads as follows:

The enormous costs and time associated with the e-Disclosure process are staggering, with the document review phase alone frequently racking up fees that in some cases actually eclipse the amount at issue.

The reason for this is straightforward: the approach to identification, collection, processing, review and analysis of information – including technology, people and processes – haven’t kept up with the explosive growth of electronically stored information.  Law firms and corporations that continue to use outdated approaches are simply too slow, inaccurate and inefficient to keep up with today’s digital information volumes and diversity and are finding themselves at a competitive disadvantage to their better-prepared peers.

In this webinar learn how law firms, corporations and the courts are embracing the use of new technology for more accurate investigations and to reduce e-Disclosure costs.

DATE: Wednesday, May 25, 2010
TIME:  4:00 pm to 5:00 pm BST

To Register for this Webinar: https://www2.gotomeeting.com/register/268150227

Those who visit this site regularly will know that this theme recurs here. The technology itself is gaining on the problem, but the approach which lawyers and courts adopt often amounts to using the methods of paper days. The handling of electronic documents is not just “like paper but different” but requires a completely different approach. The risks are apparent from several recent cases. The advantages for those prepared to recognise them, are considerable, not just in terms of terms of winning cases but for winning clients.

Do join us on 25 May at 4.00 pm.

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E-Disclosure law, practice and technology in one educational package

The first of the E-disclosure seminars organised jointly by Professor Dominic Regan and me took place yesterday at Ely Place Chambers. Dominic and I were joined by Senior Master Whitaker and by speakers from three technology providers, 7Safe, Legal Inc and FTI Technology to bring together the law, the practice and the technology in one afternoon session.

The expressed rationale for the e-Disclosure Information Project is to bring together all those with an interest in making electronic disclosure efficient and cost-effective. That crossover is important -  knowledge of Part 31 CPR and its practice direction is a good start, and the increasing number of cases involving e-disclosure failures send a strong warning to lawyers. Lord Justice Jackson drew attention to the need for more active case management by judges, and the proposed new practice direction and ESI Questionnaire raise the temperature on that front. Meanwhile, the technology reduces in cost as it increases in capability and, if properly used, maps well to the steps which parties and the court must take together, first to decide on the scope of disclosure and then to achieve it. The case management itself must be proportionate to what is involved.

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

Professor Dominic Regan and I will be leading a seminar from 2.00 until 5.15 on Wednesday 12th  May at Ely Place Chambers on the subject of electronic disclosure of documents.

Lord Justice Jackson’s only recommendation in relation to e-disclosure was that there be substantial training for both lawyers and judges. This is an opportunity to find out why he said:

The first point which needs to be made about e-disclosure is that it is inevitable in cases where the parties hold the relevant material electronically. For the parties to print all the material out and then exchange it in hard copy would often be impracticable. With all but the smallest volumes of material, that course would not be cost effective. Thus in cases where edisclosure is a consideration, it is often a practical necessity rather than an optional course.

Lord Justice Jackson also drew attention to the need for judges and lawyers to know about and understand the technology which is available to address the problems raised by large volumes of electronic documents. Dominic and I will be supported by three providers of litigation support services. 7Safe will talk about the collection of data. Legal Inc will describe the range of consultancy services which are on offer from a general provider of litigation services. FTI Technology will cover processing and document review.

This is a lot packed into one afternoon – there is nowhere else where you can cover the law, the practice and technology in one session. Ticket prices are £94 including VAT and can be obtained on application from Chris Drury, the Clerk at Ely Place Chambers.

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Women in eDiscovery at IQPC on 18 May

It is not too late to sign up for the women in e-Discovery session at IQPC’s Information Retention and e-Disclosure Summit on Wednesday 18 May. The conference itself runs from Monday 17 May and the Women in eDiscovery session takes place after lunch on the last day.

The session, which is open only to Women in eDiscovery members and is free of charge, will include talks by English and US judges as well as by solution providers. If you are not a member of Women in eDiscovery, it is not too late to join. Contact Laura Kelly.

It is not too late either to attend the whole conference which, as you can see from the programme, has comprehensive coverage of information management (that is, broadly, the things which clients ought to be doing in anticipation of litigation, regulatory investigations or internal enquiries) and electronic disclosure. My article on the Al-Sweady case gives links to a number of other cases which, taken together, make it clear that no one who purports to give advice on litigation can sensibly remain ignorant both of the obligations as they stand and of  pending developments, including the ESI Questionnaire.

Late disclosure of e-mails ends BA price-fixing trial

The government and its agencies have come unstuck yet again over failure to disclose electronic documents. A Reuters article British Airways price fixing trial collapses, published today, reports that the Office of Fair Trading (OFT) had failed to disclose relevant e-mails to the defence over several years.

70,000 e-mails were “found” last week, 12,000 of which were sent or received by the witness from Virgin whose evidence was central to the case. One at least of the disclosed e-mails appeared to undermine the prosecution’s own case. Production of the rest within the timescale ordered by the judge proved logistically impossible.

ILTA 2010 Nashville venue under water

ILTA 2010, due to take place at the Gaylord Opryland Hotel in Nashville Tennessee on August 22-26, is confident that it will find another venue after the waters from the Tennessee floods severely damaged the hotel. This video gives you some idea of the damage.

ILTA has posted advice on its website for those who have already booked rooms at the hotel. I cannot imagine what is involved in finding a new venue at short notice for a conference of this size, but knowing Peggy Wechsler and her team, they will find something. I wish them well in their search, and will bring further information as I get it.

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Singapore e-Discovery judgment shows international commonality and active management

A judgment by Senior Assistant Registrar Yeong Zee Kin in the Singapore High Court last week shows the commonality in court-led management of e-Discovery between common law jurisdictions. The case is Deutsche Bank AG v Chang Tse Wen and others [2010] SGHC 125  and it concerns the Electronic Discovery Practice Direction 3/2009 which came into effect in Singapore on 1 October 2009. Master Whitaker and I were there a few days later, and Yeong Zee Kin was a speaker at that conference. What he says in his judgment was foreshadowed by what he said at the conference.

Before turning to the judgment itself, I take this opportunity to emphasise how small this world is quite apart from the commonality between the laws and practices in each place. The judgment was delivered on 26 April. I found out about it on 28th of April because Serena Lim of BiziBody in Singapore tweeted about it. I re-tweeted it, passed the link to a few people with a specific interest in the practice directions of other jurisdictions, and put it into my “things to write about” queue. This morning, Aaron Bleasdale of Epiq Systems in Hong Kong dropped me a line to make sure that I had seen it. Yeong Zee Kin and I are both speakers at the InnoXcell eDiscovery conference in Hong Kong on the 7 and 8 July. This combination of formal judgments cross-referring between jurisdictions, instant and worldwide communication, international conference platforms, and active interest from all over the place speaks for itself.

The judgment involves a not uncommon story of one party keen to give disclosure electronically whilst the other is not, apparently on the basis that he was already poised to give disclosure on paper and considered that e-Discovery would multiply his costs.

Listening to myself talking about e-Disclosure for the IQPC Information Retention and E-Disclosure Summit

I have been listening to a podcast which I made recently for IQPC as part of the run-up to their Information Retention & E-Disclosure Management Summit in London on 17-19 May 2010. It can be accessed from the Summit’s home page. It is not that I reckoned to learn anything new, you understand, nor is there any narcissistic pleasure in hearing the sound of my own voice, but it is no bad thing occasionally to know what the audience is hearing, as Gordon Brown discovered last week.

The recording covers recent cases, the proposed e-Disclosure practice direction and ESI Questionnaire, and the e-Disclosure elements in Lord Justice Jackson’s Report. It also considers the importance of learning about what happens in other jurisdictions, and the collision between the US and the EU on matters of privacy and data collection. It ends with the observation that this subject is one with opportunities as well as risks – there is work to be won by those who take the trouble to learn a little about e-Disclosure problems and the solutions. It ends with the exhortation that “‘Get on with it’ has to be the message of 2010″.

The recording is intended to provide a context for the Summit, in particular for the US-UK judicial panel.

The 2010 Duke Conference on US Civil Litigation

No one with any interest in the US Federal Rules of Civil Procedure could be unaware of the debates which have been going on about the costs of civil litigation and, in particular, of discovery. A conference is being held on May 10 and 11 at Duke Law School, Durham, NC to consider new empirical research by the Federal Judicial Centre and other data and papers prepared by lawyers, judges and academics.

Chief US Magistrate Judge Paul Grimm kindly tipped me off today that the materials for the conference are available on a public website which contains a mass of material relevant to the discussions.

Government cannot keep documents secret in Guantanamo civil claim for damages

The Court of Appeal has held in Al Rawi and Others v The Security Service and Others that it is not open to a court in England and Wales, in the absence of statutory authority, to order a closed material procedure for the trial of a civil claim for damages in tort and breach of statutory duty. The decision overturns a judgment to the contrary made by Silber J last year. Part of the court’s decision follows from an incompatibility between the closed material procedure and the general provisions of the civil procedure rules and would not be reconcilable with the overriding objective in CPR 1.1.

Recommind research shows UK companies not ready for e-Disclosure

I spent much of today digging out quotations from judgments whose theme was inexcusable e-Disclosure failures, which I need for a paper which I am writing. We have had a run of cases in the UK where significant costs have been incurred which fall, often on an indemnity basis, on the party which is in default of its obligations. My focus is not so much on the rules, important though they are, as on the waste of time and costs which follow inevitably from the failure to get a grip pre-emptively or at an early stage. My drafting exercise is taking a long time, not because examples are hard to come by, but because there are almost too many to choose from.

In some of the cases, it is hard to decide whether the failures were the result of incompetence, ignorance, or the hope of concealment – and that is really the point: if documents have to be dragged out of you, then it is unsurprising if you find yourself accused of bad faith. When the remedy, in the form of fast and efficient processing tools, lies to hand but has been ignored, then the imputation of concealment will hang over you when you are forced to admit that you do, after all, have documents whose existence you have hitherto denied. If a fraction of the money thus wasted had been spent in getting to grips with managing document collections, then the stories would have been very different. In one case, the indemnity costs payable by the defaulting party amounted to £1 million, that is, their opponents had demonstrated the waste of at least that sum for their work in pressing for proper disclosure. I am concerned at several levels, not least because I am paying for much of this as the taxpayer funding an evidently incompetent government department, but I am concerned also for litigation generally.

Search technology: an intelligent adjunct to the lawyer’s skills, not a black box

An article by H5 on the professionalization of search ties in with my recent suggestion that lawyers and search experts have parallel roles in e-Discovery and that clients, rather than the lawyers, will manage the process. The UK courts have not yet seen a challenge to a search algorithm, but it will come, and it won’t be the lawyers who will defend it

I do not generally have a project plan for what appears here. There is always a list of pending subjects, from part-drafts to ToDo list entries to vague ideas floating around in my head, but no overall schema which brings topics or people round in regular rotation. I resist both deadlines and urgent announcements – I have enough deadlines as it is for more formal papers or for conference slides, and breathless messages inviting me to get an embargoed scoop on next week’s announcement (“revolutionary, unique”) leave me cold, with their implication that I must drop everything and scurry around at a time of someone else’s choosing in order to get out an article on the same day as the rest of the world. Apart from announcements of pending conferences and near-contemporaneous reports of conferences or important cases, I take subjects as they reach the top of my mental in-box, where they simmer for a bit before I write.

This measured approach to it all sometimes means that sub-conscious connections appear between two or more subjects, so that a snippet about one thing finds a home in an article about another, or this week’s subject-matter stirs recollections of last year’s thinking. A subject which has raised its head a few times lately has been the question whether English courts consider that electronic means of culling, filtering and refining data collections are good enough relative to the lawyers’ duty of candour. That took me back to the resources on search on H5’s web site. H5 is not, of course, the only provider of search skills and technology which takes the subject seriously, nor are they the only ones who evidence their interest by active participation in TREC (the Text Retrieval Conference ) and the Sedona Conference. Their web site was, however, the first place on which I lighted when I started to investigate the points which arise when the academic and deeply complex principles of search meet the day-to-day business requirements of those who “just” want to find the right documents.

The Franco-British Lawyers Society on cross-border e-Disclosure 17th of May 2010

The Franco British Lawyers Society have organised an evening session called Searching for evidence: a panel discussion on cross-border e-Disclosure from an English and French perspective. The event takes place on Monday, 17 May at 6 pm at Pinsent Masons, 30 Aylesbury Street, London EC1R 0ER.

The speakers are:

• Mark Surguy: Legal Director at Pinsent Masons LLP.
• Caroline Jan: Solicitor at Pinsent Masons LLP.
• Claire Picard: Avocat at Salans.
• Vicky Harris: Business Development Director at Merrill Corporation.

Registration is solely via the FBLS and places are limited. The event is free and includes a drinks reception. Contact Marie-Blanche Camps by email at yfb31@dial.pipex.com

You might also be interested in the FBLS events programme. I see from it that I missed an event in Edinburgh called The use of modern technologies in the Scottish and French court systems. The speakers included the Unit Manager of the Electronic Service Delivery Unit ‐ Scottish Courts and the Senior Legal Adviser of the E‐Justice working group of the Council of Bars & Law Societies of Europe. Both E-Justice and the use of technology in Scottish legal practice catch my interest, and I would have promoted this talk, or even attended it, if I had known about it.

I cannot, unfortunately, attend the 17 May Anglo-French event because I will be out at an Anglo-US dinner that evening with a group of judges – e-Discovery experts all – from both sides of the Atlantic. If we merged the two events, we could probably resolve any number of multi-jurisdictional discovery problems.

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EDiscoveryMap helps navigate cross-border issues

Monique Altheim, a New York qualified lawyer, has quickly established her blog, EDiscoveryMap, as a mine of information on matters of personal data, privacy, data transfer and cross-border transfers. I follow her on Twitter as EUDiscovery and EDiscoveryMap which keep me up to date both with her own writing and with other sources.

Monique attended the IAPP International Association of Privacy Professionals Global Privacy Summit 2010 in Washington recently. Many from Europe failed to make it thanks to the volcano. They, and anyone else interested in this topic (judging by Monique’s blog hits, a great many people) ought to look at her blog which, as I write, includes near the top several video interviews with people who are knowledgeable in this area.