Copying my work is OK – up to a point

From time to time, people ask if they may republish my articles; sometimes they simply go ahead and copy them without asking. I am usually relaxed about this – although most of my work involves writing, that is not what I am paid for; the job is to spread the word about e-disclosure / ediscovery as widely as possible, and that objective is best served by wide republication of what I write. I ask only that I am credited with it, and that anything of mine which is quoted, whether the whole or any part of an article, appears exactly as I wrote it – I am not tolerant of people “improving” my prose.

I do not have a Google Alert set up for my name (although perhaps I will from now on), but I do have one for “e-disclosure”. An alert turned up this morning with a text extract which looked familiar, although the heading and website address did not. It turned out to be an article copied from my website or, rather, an article made up of passages cobbled together from various articles on my website. So far as I can tell, most of the extracts have been reasonably faithfully copied, although there is at least one passage which I do not recognise.

The e-disclosure practice direction and electronic documents questionnaire in tangible form

Since I have been banging on about the “proposed” or “pending” edisclosure practice direction for months now, it is not surprising that everyone seemed to think that I would be the first to know when it had been formally published. I was nine days late in reporting its publication by the Ministry of Justice and, even then, did not point to a source for the official version.

To judge from the messages I have had since, some of you felt that this was as if King Aegeus had somehow failed to spot the sails of Theseus’s ship despite his long vigil on the Cape of Sounian.  One correspondent was “surprised” and another “amused” that the news had reached me via Twitter, as if I should  have been watching the MoJ web site night and day; perhaps they think that the Master of the Rolls would telephone me personally when the final signature landed on the parchment or whatever they print Statutory Instruments on these days.

The reality is that helping to draft these things gives you no special status when it comes to tracking their progress; indeed, like Aegeus, I did not know whether to expect black sails or white ones, which is why I said nothing concrete about the PD until I saw an announcement in official form (if you are lost by all this stuff about Greeks on cliffs and monochrome sails, by the way, Plutarch’s Theseus is a good read).

ILTA 2010 in Las Vegas: Strategic Unity, Defensibility and the Cloud

ILTA is the International Legal Technology Association. I am now back from ILTA 2010 Strategic Unity in Las Vegas, which was as busy and as good as ever. The red hot bloggers and tweeters were reporting on events as they happened. As usual, I prefer to wait and see what I can still remember a few days later, and to write about what interests me rather than what is seen objectively as important. My background post What happens in Las Vegas matters in the UK was a play on the old saying that what happens in Vegas stays in Vegas. These days, what happens in Vegas stands a good chance of being on FaceBook or Twitter in minutes, and the nearest I came to vice involved a new taste for cocktails, and cheesecake for breakfast (not, as my first draft had it, “cocktails and cheesecake for breakfast”, which just goes to show the importance of proper punctuation).

This avoidance of vice owed nothing to innate virtue. Between the educational sessions, the formal meetings, the social events and the random rencontres, there was no time for the more traditional Vegas pursuits of gambling, shopping, spur-of-the-moment marriage and energetic physical interaction with broad-minded fellow-delegates. I must improve my time-management next time.

E-Disclosure Practice Direction and Electronic Documents Questionnaire – it is official

I have made many references over the last few months to the pending UK e-Disclosure practice direction and to the electronic documents questionnaire which is part of it. The more observant of you will have noticed that I have never actually said that it will come into force on 1 October 2010. Indeed, someone wrote to me only yesterday asking if I knew what had happened to it; my carefully-worded reply (quiet optimism qualified by the need to see an official announcement) led him to observe “your cautious response reminds me that once a lawyer, always a lawyer!”

Well, we do at last have the official announcement, on the Civil Procedure Rules section of the Ministry of Justice website.  I found out about it from Twitter, although the vision this brings of messages flying round cyberspace is rather undermined by the fact that the tweet was put up by Jonathan Maas of Ernst & Young, who was a only few yards away from me here at ILTA in Las Vegas.

What happens in Vegas matters in the UK: ILTA 2010

It is 2.30am here in Las Vegas and my laptop has just woken me up with a mating noise – yes, three days into this technology conference at this most modern of hi-tech hotels, the internet connection has sprung to life. I had better grab the opportunity while I can.

It is just as well that I do not purport to deliver red hot news. This post was written on the Sunday before ILTA 2010 opened in Las Vegas, and intended as a scene-setter, with some thoughts on the relevance of ILTA to non-US lawyers and clients. You would think that a day which began with a time-shifted 4.30am start and ended in a bar at 1.30am the following day would include space to finish and publish an article.  It did not work out that way and the next day has now passed. If I wanted a further excuse, I could not have published anything anyway with no web connection.

Sunday 22 August 2010

Four years ago, as ILTA was about to open in Orlando, I realised too late that I should be there. I had not been before: my focus then was narrowly on e-Discovery in the UK, and it was only as I read the ILTA programme and got reports on who was there and what was being discussed that I realised how universal the subjects were. It was a moment of epiphany, the point at which I saw that one could not write and talk  authoritatively about electronic discovery in any one jurisdiction without knowing what was happening in the US and in the other common law jurisdictions which require disclosure of electronic documents.

Getting the timing right

The run-up to ILTA is not a good time to give the impression that I am too busy to take note of what is going on.  It is a time of product launches, when all the players in the e-discovery / e-disclosure market have something to say, so my InBox floods with press releases and every PR consultant in the market wants to make an appointment for ILTA; it is also the point when conference organisers need to get their Autumn programmes sorted out, with bullet points, flights and hotel bookings to organise.

I have been largely out of it all for a couple of weeks.  I made a deliberately oblique reference in my last post to “an unexpected domestic matter …. which has much of my attention for a few days”, but it is perhaps helpful to explain what I meant, in case I have been coming across as evasive or over-stretched, neither of which is true. Besides, my wife thought that the reference to an “unexpected domestic matter” sounded as if she had run off, and although she is out as I write, I  think she will be back later.

What was unexpected was that my father died a few days ago – no claim to uniqueness in that, of course, but it takes it out of you and you don’t get too much time to prepare. His transition from sounding fine to drawing stumps was very brief. Considerately, he chose the first week for months when we were all around, and gave us just enough notice to race down the motorway a couple of times to see him before he slipped off. He went down fighting – demanding his stick and his cigarettes, doing the crossword, and criticising what he found in the business pages of the paper – and I hope I make as good an end.

Discovering new methods of persuasion

As you know, part of my role is to persuade, and I am always looking out for new ways of getting people to consider how best to handle electronic documents. It is the mere consideration which matters – no-one is saying (well, I am not, anyway) that every case, or even most cases, require you to jump about preserving and collecting everything in sight, but anyone who engages in litigation ought to have some idea of the costs and other factors which apply when litigation threatens. Knowing the rules and being familiar with the occasional judgment is not a bad start, and is the least one might expect from a lawyer who purports to practice civil litigation.

I write a bit, and speak at conferences, do webinars and the occasional podcast or video – any method, really to promote awareness of the subject. What is the proper response, however, when you come across an audience which has self-selected as being interested in electronic disclosure but which has not heard of the Practice Direction to Part 31 CPR (it has been in the CPR for five years), or cases like Digicel v Cable & Wireless, Earles v Barclays Bank or Goodale v Ministry of Justice? Desperate remedies are needed, and I think I found one at the weekend:

Welcome to Clearwell as new sponsor of the e-Disclosure Information Project

It is a great pleasure to welcome Clearwell Systems as the latest sponsor of the e-Disclosure Information Project. Given Clearwell’s present standing in the eDiscovery market, it is hard to realise that it was founded as recently as 2004 and had therefore been going only three years when I set up the Project.

How does one measure a player’s “standing in the eDiscovery market”? I do not purport to be an analyst, so my use of the word “standing” implies no comparative statistics or detailed research. One can look at Clearwell’s “Strong positive” rating from Gartner in 2009, and its “Top 5″ supplier ranking from Socha-Gelbmann in 2008, an the logos of its users on its home page – BP, Microsoft, Toyota, Walmart, FedEx and others – act as kind of reference, but my sense of their standing does not derive entirely from these things either. Nor do I get it just from the references which Clearwell attracts – a quotation from KPMG’s Paul Tombleson referring to the “simplicity and speed at which Clearwell processes data” appears on its home page, and Legal Inc’s web site carries an article called Legal Inc and Clearwell – cutting complex projects down to size .

What I am talking of is a less tangible sense than one gets from such hard factual sources. Clearwell gets mentioned a lot, amongst those who are potential users and amongst rivals, and in a way which conveys ubiquity; for the benefit of non-Latinists, that means they turn up everywhere. This goes beyond their appearances on product selection short-lists. Clearwell is, in addition, a regular and informed commentator on the market, with an active blog, a range of useful white papers, and tweets which do more than merely promote its own products. They also support TREC, the Sedona Conference and lead several EDRM projects.

Helping yourself to confidential information in litigation

Two parties, male and female, are engaged in litigation. The lady fears that the man will conceal information about his assets which ought to be disclosed in the litigation, and gets her agents to copy all his personal and business correspondence and documents from servers which, by happy chance, they control. The agents, having collected between 250,00 and 2.5 million pages, pass them to their own solicitors who instruct a barrister to weed out those for which privilege might be claimed, and the remainder, seven files of documents, are passed to the lady’s solicitors for use in the proceedings.

When challenged as to the legality, to say nothing as to the propriety, of this, the lady’s team say that they had legitimate grounds for concern based in part on something the other party had said about his assets and in part on the fact that concealment of assets is a common problem in proceedings of this kind; they also point to a rule derived from case law which, they say, is authority for conduct of this kind. The other party says that he had no intention of concealing assets, that the information was confidential, that his obligation to disclose documents had not yet arisen, that the alleged “rule” is no such thing, and that the law offers more conventional remedies to those who have genuine cause to fear that documents will be put beyond their reach. The Court of Appeal makes the lady return the documents, saying that it will be for the judge hearing the main proceedings to decide whether full disclosure has been made, to decide what use, if any, the lady may make of her recollection of what was in the documents, and to decide on the proper balance between the importance of that information and the manner in which it was acquired.

You have probably deduced that matrimonial proceedings are behind this judgment. The case is Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 (29 July 2010) and the underlying divorce is Imerman v Imerman. The agents are Mrs Imerman’s brothers, whose offices and computer systems were used by Mr Imerman. That gave them access to his documents and data and they, keen to support their sister, helped themselves. Amongst the many other curiosities of the case is the fact that this relationship probably also made the brothers the data controllers under the Data Protection Act 1998; breach of confidence may not be the only issue involved here, and criminal, as well as civil, implications may arise. There is a useful summary in this article.