Catching the flood of E-Disclosure and E-Discovery articles

Applied Discovery, Jonathan Maas, The Posse List, EU Data Protection and data privacy, Iron Mountain Stratify, Aérospatiale, WP158, Safe Harbor, Irish eDiscovery, Scotland, Autonomy, FTI Technology, Senior Master Whitaker, Ernst & Young, Goodale v Ministry of Justice, Craig Ball, Multiven v Cisco, Helmert v Butterball, Singapore, Recommind, ILTA, Equivio, Ringtail – oh, and L P Hartley, West Arkansas and Schleswig-Holstein. How much more can one get into one article?

I do not usually do compendium articles pulling together several different subjects under one heading. Rob Robinson of Applied Discovery is the King of the Compendia, and anyone interested in electronic discovery should be on his mailing list, following him on Twitter or catching The Posse List’s reproduction of his weekly list of articles. The UK now has its own list thanks to Jonathan Maas of Ernst & Young whose Bong List has quickly become essential reading – send a message to Jonathan to be included. I generally have the luxury of taking one subject at a time and writing about it at whatever length it deserves, driven usually by what interests me most, and I mine these lists, as well as Twitter, for subject-matter.

This is the first week spent entirely in my office since the beginning of January, and I had looked forward to a leisurely few days following up some of the links and articles which I have been stockpiling on iCyte. The trouble is that they have been pouring in, and when it came to trying to decide which was the most important or interesting, the answer was “all of them”. Providing some brief summaries and links in a single post seems a good idea.

Getting in amongst the lawyers

I referred in my last post (see The Last Lap) to the  law firms which lie below the very biggest and which have the potential to be the standard-bearers for a new approach to managing litigation. Many of their lawyers have come from the big firms, with all that that brings in terms of skills. They have a lower cost-base which goes through into their charging rates. They have the quality of work, the incentive in practice development terms and the flexibility to adapt to new ways of working. One of the factors which distinguishes them from the city giants is that they do not have large teams of people to allocate to  heavy e-disclosure jobs which means that they must either find other ways to handle large volumes or avoid document-heavy cases (they could just do them badly or unprofitably, of course).

The majority of their lawyers’ case-loads are not big budget ones with hundreds of thousands of documents, so they have not seen the need or opportunity to develop either a process or the skills to manage a large electronic disclosure exercise. They do have such cases, however, and another could turn up tomorrow, particularly as clients shop around to make their litigation budgets go further.

I am hearing from an increasing number of such firms – all names which you would know in a litigation context and which, despite variations in size and specialisation, have much in common in terms of the civil litigation work which they do. Most of them lie in the top 100, with one or two of them in the range 100 to 200 as defined by The Lawyer. Their Lawyer ranking does not necessarily define the size of the litigation which they handle. Their motivation for showing interest in e-disclosure varies: sometimes it comes with a particular matter in which they are instructed; they may have missed the cases which are reported as significant (Digicel v Cable & Wireless or Earles v Barclays Bank for example), but they may have seen the ones which attracted publicity in the press (Shoesmith v Haringey, Ofsted and the Secretary of State for Education, the OFT’s withdrawal of its price-fixing prosecution against BA and Virgin) which point up the risk of getting it wrong; they may have heard of the pending practice direction and electronic documents questionnaire and of Master Whitaker’s judgment in Goodale v the Ministry of Justice; they may sense a practice development opportunity.

The last lap

I have not run out of things to say, in case you are wondering at this week’s silence.  This is the last week of a near-continuous run of events – preparing for them, attending them and reporting on them – which began before Easter. There is almost nothing in the diary now until ILTA 2010 Strategic Unity in Las Vegas at the end of August. I don’t want a holiday exactly, but I do need a break from always having a deadline round the corner.

I took part in a webinar today with Jason Robman of Recommind, the third in a series which we have done together. This one was called The UK e-Disclosure Questionnaire – Its Implications for Law Firms and covered the pending Practice Direction as well as the Electronic Documents Questionnaire – very much the hot topics of the moment. It appears that the sound output did not work for all those who attended. Fortunately, it was recorded and is available here.

The webinar format is unbeatable as a means of delivering information on current topics at no cost to participants particularly when, as here, you can choose your time to listen.  The burden of this one inevitably fell mainly on me, since neither Jason nor anyone else has actually seen the Practice Direction. I find webinars very much harder to do than standing on a platform – I will happily busk for 45 minutes without notice to a roomful of people, but feel the need of a script if my audience is a microphone. One loses spontaneity in the process, especially when, as here, the subject is a wordy one. Nevertheless, if you want to know about the Practice Direction – why we need it, what it says and what its implications are – the link above will lead you to a 45 minute talk about it. My thanks to Recommind for the opportunity to talk about it.

Recommind webinar: Implications for UK law firms of the Electronic Documents Questionnaire

Recommind are hosting a webinar on Wednesday July 21, 2010 4:00 PM – 5:00 PM BST with the title The UK e-Disclosure Questionnaire – Its Implications for Law Firms. It is the third in a series of webinars which I have done with Jason Robman, Assistant General Counsel at Recommind. Registration is here.

Parties to civil litigation are already required to discuss their sources of electronic documents before the first case management conference. The source for this obligation, and of similar duties to discuss formats for exchange and the use of keywords etc, is the practice direction to Part 31 CPR which is almost universally ignored.

The point of the new questionnaire, which is required only in limited circumstances, is to serve as an agenda for those discussions. Lawyers are expected to identify the potential sources of disclosable documents as well as some obviously useful information like date ranges and key custodians. It is better to flush out any disagreements about such things before disclosure is given rather than afterwards.

I am a member of Senior Master Whitaker’s working party which drafted the questionnaire and the proposed practice direction through which it is invoked. The purpose of the webinar is to show what is covered by the Questionnaire and what the implications are for law firms using it.

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Epiq launches European document review service

Epiq Systems, owners of document review application DocuMatrix, have launched a new document review service based in its new offices in London following the success of the US service. The press release is here.

It is in a sense otiose for me to give my views since they are already set out in the press release, where I am quoted as saying:

Epiq’s document review service will appeal to a wide range of law firms and corporations. Those with existing expertise in electronic disclosure can take on additional work even if their in-house teams are already stretched; those who have no in-house resources and who might otherwise have to pass up work (or take it on with inadequate skills and staff) can delegate the expensive review stage to experienced teams. The two things which are particularly attractive about the service is the emphasis on quality control and reporting, and the fact that it is product-neutral despite the fact that Epiq is itself a well-known software provider.

H5 webinar – The State of Search in 2010

I cannot realistically give notice of every webinar  given on the subject of ediscovery / edisclosure, but there are two coming up which are well worth mentioning. One is by Recommind, next Wednesday, on the UK Electronic Documents Questionnaire, and my particular interest there is that I am co-presenting it. I will write separately about that.

The other is hosted by H5 and takes place on Monday 19 July at 12:00 PM Eastern Daylight Time (UTC – 4 hours). It is called The State of Search in 2010 – A Roundtable Discussion with the Bench, Bar, and Experts.

The speakers are US Magistrate Judge Paul Grimm, Ken Withers of the Sedona Conference, Maura Grossman of Wachtell, Lipton, Rosen & Kat, and Bruce Hedin of H5.

The title and the names of the participants should be enough to attract you in for a 60 minute distillation of what is important in search as we pass the half-way point in  2010.

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Searching for documents does not create them

There is a good article on Practical Law’s construction blog by James Clarke, a solicitor at Pinsent Masons. Called Is the ESI questionnaire the future of case management?, it is generally supportive of what is now called the Electronic Documents Questionnaire, and gives a good explanation of the reasons why those of us who drafted it felt that it was necessary.

There are a couple of points towards the end, however, which have not, I suspect, come out quite as the author intended. I cannot let them pass without comment because they might otherwise serve to feed some misconceptions which bedevil any explanation of the subject. My purpose is clarification not contradiction.

The first such sentence reads as follows:

Before committing to the questionnaire at an early stage, your client needs to realise that it could commit them to search terms and sources of electronic documents resulting in a disproportionately large number of documents to review – at significant cost.

We know from the rest of the article that its author well appreciates the value of early identification of electronic sources. This sentence, however, appears to imply (indeed, says in terms) that completing the questionnaire could lead to many documents being found. Well, if the documents exist, then we need to know about them, don’t we? The alternative is relief that the documents lay undisturbed, which seems to me to fly somewhat in the face of the primary disclosure obligations. Furthermore, the fact that you have found them does not mean that you have to disclose them, still less review them – see Master Whitaker’s judgment in Goodale v Ministry of Justice, referred to approvingly by the article’s author. If you end up reviewing everything you find, then you have almost certainly been in breach of the disclosure rules, to say nothing of the overriding objective.

A call to arms for ediscovery in Hong Kong

The purpose of my visit to Hong Kong last week was to speak at the InnoXcell Ediscovery and Digital Forensics Conference on 7 and 8 July. Several of the international brigade of ediscovery speakers joined local lawyers, suppliers and others for two days of intensive but enjoyable talks and panel discussions at the Renaissance Harbour View Hotel.

The best call to arms came not at the conference but at a panel session at Allen & Overy on the day after the conference. A&O associate Jonathan Crompton, winding up the event, invited the audience to look out of the window at the self-evidently thriving commercial centre below. Hong Kong needs to manage electronic discovery, he said, in order to maintain its position as a place to do business. The exhortation somehow meant more when you could see what he was talking about through the glass. I will come back to that event in due course, but I introduce Jonathan Crompton at the top of this article for more than his rhetoric. He is the author, with Aaron Bleasdale of Epiq Systems, of an article called E-discovery: time for Hong Kong to catch up which was published as the cover story in the Hong Kong Lawyer as the conference opened. It set the scene nicely.

The other comment which sticks in the mind came from Singapore’s Senior Assistant Registrar Yeong Zee Kin, who observed that if business people have adapted to the use of electronic documents, then the lawyers and courts could not neglect them. It would be tactless of me to observe that Hong Kong’s loss could be Singapore’s gain if the businesses of the region conclude that the one jurisdiction is more effective in dispute resolution than another. Not all dispute business is portable, but some of it is.

Noel, Stanley and Ludwig in Hong Kong

I am just back from a week in Hong Kong whose primary purpose was to speak at an ediscovery conference, with a couple of other meetings thrown in. I did three panels in one afternoon and a fourth the following day, and I have three speaking sessions coming up this week, so this post is a kind of palate-cleanser in between, more about the discovery of Hong Kong than about ediscovery in Hong Kong. If you like your ediscovery reading to be undiluted forensics, case law and search strategy, then skip this post and wait for my more formal account. There will be some overlap, no doubt, but this is travelogue not subject-matter learning – I put that in right at the top to head off the Tweeter who mischievously sub-titled my last post as being from his new blog “My Summer Vacation”. Lucky me, I say, to be able to take my holidays in the up-and-coming ediscovery hot-spots just when a big conference is taking place. I am already on record as suggesting that the Australia – Singapore – Hong Kong axis is the next place for ediscovery growth, so some of you may value the introduction anyway for that reason – and I have just fielded a message asking about the place for precisely that reason.

One of the features of this trip was that my wife, Mary Ann, was able to come with me. This conference, for a change, was not in her university term and I had gaps on each side of it. For once I had both time and incentive to see something of the place as well as perform my duties and mix with the likeable caravanserai of ediscovery people who gather at these events. That is all pure pleasure for me anyway, but I have a bad habit when on my own of treating hotel rooms as an annex to my office, and of snacking in Starbucks. We ate in everything from a Chinese greasy spoon to the tea room at the Peninsula Hotel, where a band plays in the gallery and you expect to see Noel Coward or Harry Flashman at the next table (although Flashman’s visit to Hong Kong in 1860 en route to the Second Opium War preceded the opening of the Peninsula by 68 years).

Back from Hong Kong Ediscovery Conference

I had no ambitions to write up the Hong Kong trip whilst I was there. Quite apart from the fact that I was due to be on the platform for 25% of its running time, there were a lot of people to see, a city which was new to me, and the company of my wife, Mary Ann. I loved every minute of it, have reinforced my conviction that Hong Kong and the AsiaPac region is a coming place in eDiscovery terms, and did a lot of touring and eating.

At least two long posts will result from all this, but there is some catching up to do and no let up in the UK diary, with three events this week. Bear with me. Some photographs help give you the feel for the week.

Kowloon from the Peak, Hong Kong

Hong Kong Central looking West at evening

An Englishman moderates a US panel

Chris Dale, Browning Marean, Judge Peck, Senior Master Whitaker

An eDiscovery night out in Hong Kong

A headstone at Stanley Military Cemetery, Hong Kong

Hong Kong surrendered to the Japanese on 25 December 1941

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Goodale v MoJ now has a proper neutral citation number

Senior Master Whitaker’s important judgment in Goodale v Ministry of Justice now has a proper neutral citation number. It is 2009 EWHC 3834 (QB) Handed Down: 5 November 2009. The Claim No is HQ06X03876. Thanks to Master Whitaker for passing this information on.

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How much does a lawyer need to know about electronic documents?

We all make judgements, conscious or otherwise, about the degree of skill or knowledge we need to acquire to conduct our business or, indeed, for everyday living. A number of factors dictate how much we feel that we need to know, ranging from professional qualifications to what excites our interest or curiosity.

We like to think that the chap who hovers over us with a scalpel has acquired a minimum amount of both book-learning and practical experience, and there are interesting NHS statistics which suggest, unsurprisingly, that particular types of operation have more successful outcomes in hospitals which do more of them. If you run a business, then the fact that VAT is inherently dull is no excuse for not knowing at least enough to keep your VAT returns in order. If you drive a car, you need to know the rules of the road and have some idea of the mechanical actions needed to make the car go and, more importantly, to stop.

Some things which are of great importance to others can safely be ignored. I gather, for example, that some Italian has just taken eleven English ball-kicking experts to Africa to highlight the inadequacy of Uruguayan opticians – a worthy endeavour, no doubt, and one which appears to obsess many people, but I do not feel that my life is much diminished by my ignorance of the subject. Not everyone would agree, on the other hand, with my view that everyone ought to know something of the politics of their own country – it is not necessary to be a political activist, or even to have an opinion, but one ought to know broadly what differentiates one party from another and what the issues are. The playwright Tom Stoppard, applying for a job on a newspaper, felt that he ought to express an interest in politics. Asked who the Home Secretary was, his reaction was “I said I was interested in politics, not that I was obsessed by it”. This line from ignorance through interest to obsession turns up in every area of life.

Legal Inc offers secondment of litigation support personnel

Although most providers of litigation support services make their consultants available to law firms to help with projects, Legal Inc has gone one further and effectively set up its own recruitment arm, offering litigation support personnel at all levels.

The service, called Incterim, is described here. Although expressed primarily in terms of enabling firms with existing litigation support staff to cope with peaks and troughs, there is a big opportunity here for firms with no existing resources or experience to take on jobs for which they might otherwise feel disqualified because of the technical and procedural implications of handling even modest amounts of electronic documents.

Firms are rightly wary of stepping into the unknown, yet cannot justify the employment of full-time staff specialising in electronic disclosure. Many of the recent cases can be classified as “incompetence cases” in which significant costs and reputational consequences flowed from relatively simple mistakes or from a failure to apply the right resources at the right time.

Legal Inc’s initiative seems a good way of drawing attention to the fact that skilled people can be engaged at short notice for whatever period is needed to keep the right side of the rules and to understand what technology is available. The hard part is not in fact either of these, but lies in the lack of informed project management skills.

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Publication of 2nd Edition of Butterworths on Electronic Evidence

The only book in my office, apart from battered copies of the Concise Oxford Dictionary and Roget’s Thesaurus, is the first edition of Butterworths’ Electronic Evidence.  When I got it, I had no particular interest in discovery anywhere but in the UK (which is why my business is called the e-Disclosure Information Project, not “e-Discovery”) and I rather ignored the non-UK sections which comprise the bulk of the book. It saved me from embarrassment on the day it arrived – I was doing a live webinar and did not know the answer to a question thrown at me by a delegate; a quick scrabble through the index gave me something to say.

I made contact with its General Editor, barrister Stephen Mason who, in due course, invited me to contribute to a chapter in the second edition. That has just been published, which is why the subject comes up now.

My bit is the England & Wales part of Chapter 7 The Practical Management of Electronic Evidence, in which my co-contributors include people I know like Sandra Potter from Australia, Dominic Jaar from Canada and M James Daley (of Sedona fame) from the US. Other contributors whom I know or have met include Iain Mitchell QC (Scotland), Seamus Byrne (Australia) and Bryan Tan (Singapore). The introduction is by Chan Sek Keong, Chief Justice of Singapore.

Dales around the World

If you come across a good-looking young Englishman in your American city who says his name is Dale and that he comes from Oxford, it is not me – not this week, anyway. My second son Tom is in the US with his girlfriend Nom. They reached San Francisco yesterday and then go on to Washington and New York.

Such a rencontre is, of course, unlikely, but stranger things have happened. We once met a girl at a legal party in London who told us about the strange people who had left an egg in the fridge of a house she was cleaning at a holiday cottage in the Dordogne. She had no way of knowing that we had ever been to the Dordogne still less, as a few questions about places and dates quickly established, that we were the culprits. The double chance – that we should meet this girl and that she should tell us this obscure story – has left me willing to accept the possibility of almost any coincidental meeting. So keep an eye out for Tom.

As he reaches the East Coast, I will be arriving in Hong Kong for the InnoXcell ediscovery conference. No coincidence will be needed there to meet up with several people I know: US Magistrate Judge Andrew Peck, Senior Master Whitaker, Vince Neicho of Allen & Overy, Senior Assistant Registrar Yeong Zee Kin of Singapore, Greg Wildisen of Epiq Systems and Browning Marean of DLA Piper will all be there, along with others whom I have met at past conferences. The programme or, at least our parts of it, is intended to encourage the idea that we are all in this together, with common themes, problems and solutions running between the different jurisdictions. That will be emphasised by the fact that it falls to Master Whitaker and me to cover Australian developments in the absence of any Australian speaker.

This commonality is again not a coincidence. All the countries represented by this group of people, along with other jurisdictions, have a shared common law (or, strictly, equitable) tradition of discovery, and it is not pure chance either that brings the same individuals together, in different permutations, on platforms around the world.

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