Low-tech privacy breaches

Amidst all the proper concern about the use of technology in breaches of privacy, it is easy to overlook the ease with which we can give away information by more everyday means. Some examples illustrate what I mean.

My railway carriage this morning had more than its usual quota of people braying into their phones whilst the rest of the carriage tried to sleep or, in my case, to write an article. One such caller was involved in some capacity in litigation involving a departed employee – it seems that the company has a better case than it originally thought because of newly-found evidence about the ex-employee’s preparations to set up a competing business whilst he was still employed by the company. The speaker had not yet been able to find out more because he had not been sent the backup tapes for a particular custodian – presumably the ex-employee in question. A name was mentioned which I did not, alas, write down; if I had recorded it, I would be happy to repeat it here.

Over-estimating both costs and risks in the eDisclosure Practice Direction

There is a general sense that the eDisclosure Practice Direction has broad acceptance amongst lawyers – those who have read it before commenting on it, anyway. It is not just another CPR burden, nor is it something to fear – whatever you may hear from scaremongers with an interest in making it seem so.

I do not need to declare my interest in the success of the eDisclosure Practice Direction and its Electronic Documents Questionnaire. I helped draft it and have advocated its principles – of informed co-operation as a pre-requisite for proportionate disclosure – for years. It is good then to report that the initial reactions from lawyers seem to be favourable, even amongst those who accept that there are challenges. Most recognise that the challenges derive from the existence of the electronic documents, not from the measures being taken to control them.

We need to know, in due course, how it works out in practice. Meanwhile, it is worth drawing attention to two wholly predictable reactions which emerged within a few days of publication. The first is properly the subject of debate, though that debate will be more valuable when the proponents on each side have some experience of working with the PD, or have at least run their eyes down its main provisions. The second may appear a matter of nuance, but it is a nuance which matters. The common element is an interest in making the implications of the PD sound more alarming than they are.

I am referring to:

• The exaggeration by some lawyers of the new burdens allegedly imposed by compliance with the E-disclosure obligations in the rules
• A similar exaggeration by some technology providers of the same burdens, shading the useful “we can help” into the less useful “you have to involve us to do the job properly”.

Whether the dominant motive is the overriding objective or increasing your profits (and both are perfectly respectable drivers) these exaggerated reactions turn the end user (the lawyers from the perspective of the technology provider and the clients who can choose not to litigate if the system seems inimical to cost-effective litigation) against the whole subject. Let’s debate this by all means, but let’s start by looking at what the obligations actually add up to. Our sources are the documents themselves, the eDisclosure Practice Direction and the Electronic Documents Questionnaire.

Turning e-discovery news and views into a community of interest

Those of us who work in e-discovery / e-disclosure get better and better at passing information and views between ourselves.  Web sites, blogs and Twitter allow us to keep up with developments – new products, company news and cases – in a market which changes all the time. Improvements in the mechanics of information delivery do not make it easier for new readers (which is the audience which matters) to understand it all. Can we turn this stream of information into a community of interest?

The word “community” has been hi-jacked by the woolly thinkers of the soft left. Private Eye runs a regular column pillorying those who write of meaningless “communities” whenever two or more people have some characteristic in common.  The expression “community of interest” has a meaning worth keeping, however, and is correctly used (and hard to replace) when different groups have common ground. The one in which I am interested is the loose assembly of lawyers, their clients, judges and technology providers who aspire to the proportionate use of electronic documents in litigation. That aspiration is purely notional in many cases, mainly because many of the players do not fully understand what the others need or can offer.

This article began as a way of covering many apparently disparate pieces of news or information in one place. As I wrote it, themes began to emerge which mapped on to some of the conversations which I have with lawyers seeking a quick ramp into the broad options which they face when e-disclosure becomes inevitable. We who have grown up as the industry grew up throw names and terms at each other, as if the audience shared the building-blocks of knowledge. They do not. Running several stories together may make for a long article, with loops and digressions as I expand on things which seem obvious to industry regulars, but those to whom it is all new may find that helpful.

One of the links which I intended to pass on anyway happened to be an interview in which Richard Susskind argued for better use of social media and for the development of a community of interest between the participants in the wider legal IT industry. That neatly tied in with my plan to base this article round a series of tweets, and suggested by extension that Twitter provides a ready-made core for such a community. It does so already for those on the inside. We need to invite the users in.

AccessData joins the e-Disclosure Information Project

It is a great pleasure to welcome AccessData as the latest sponsor of the e-Disclosure Information Project. AccessData has been involved in digital investigations for more than 20 years and its Forensic Toolkit®, cyber security and eDiscovery software solutions allow organisations to preview, search for, forensically preserve, process and analyse electronic evidence.

More recently, AccessData has added the ubiquitous Summation solutions to its offerings,including AD Summation iBlaze, Enterprise and CaseVantage. It therefore covers the full range from document collection and preservation through to review and case management.

I will get a proper review of the product-set and of AccessData’s ambitions shortly, and will pass that on. This brief note merely flags AccessData’s arrival as a welcome member of those who support the educational and awareness purposes of the e-Disclosure Information Project.

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E-Disclosure and E-Discovery at home and abroad

I have given my first law firm talks since the Edisclosure Practice Direction became official and have started talking to my sponsors about its implications for them – the questionnaire gives them a useful and early role, if they are ready to give help to lawyers who need it; the speakers for my international judicial panel for the Masters Conference in October are booked; other autumn conference plans are moving forward. The new season is well under way.

I will come on to these things in a moment, including a quick digest of some points from the PD which may not be immediately obvious. They are not the only reason why there has been a gap since my last article: I have been off on my summer holidays – well, it was a long weekend really, and not that long, just half a day tacked onto a weekend before I had to get back for an interview. Maybe next year.

We have been at my mother’s house at Orford on the Suffolk coast.  The word “defensibility” means something rather more tangible in Orford than it means in ediscovery.  Orford Castle was built between 1165 and 1173 and its keep dominates the skyline still. On Orford Ness, a narrow strip of land between the River Alde and the sea, secret military tests were conducted from the 1930s onwards, first on radar and later on cold war weaponry, for which purpose the curious Pagodas were built. It was also the home of a post-war over-the-horizon radar station for an Anglo-American system called Cobra Mist, abandoned in 1973. Orford Ness lighthouse may have been the source of the lights reported in the 1980 Rendlesham Forest UFO sightings, and attributed at the time to triangular flying objects – the only known example of someone demonstrating their technology and not following it up with a sales call.

This was a brief hiatus before activity picks up on both domestic ediscloure and international ediscovery. The UK’s Edisclosure Practice Direction comes into force on 1 October, and I have given my first law firm talks on the subject to one of those good regional firms which, I have suggested, have everything to play for in document-heavy litigation. That type of work used to require large teams and other resources available only to the biggest firms. The practice direction should see an end to the “brute force and ignorance” approach to edisclosure; the cudgel should give way to the stiletto, as firms learn to use the rules and the technology to narrow the disclosed documents as early as possible down to those which matter or which matter most. The practice direction requires [paragraph 6 (2)] that technology should be used in order to ensure that document management activities are undertaken efficiently and effectively. You do not need to be a big firm to handle large volumes, just aware of the tools which exist and (just as importantly) how to use the rules and the cases to meet the clients’ objective – which is not usually disclosure for its own sake.

Mrs Justice Gloster on disclosure of documents in the Commercial Court

If you wade through all the sex and celebs, fashion, make-up and gossip which comprise the bulk of The Times these days, you can occasionally still find good articles on legal matters, usually written by the excellent Frances Gibb. Their former influence has been diminished by the fact that the Times has disappeared behind a paywall – I express no view on that beyond mourning the former ability to point you to articles of interest.

An article of 2 September was headed Commercial Court goes modern with a woman head judge and new building which, as its title implies, was largely about the appointment of Mrs Justice Gloster as head of the Commercial Court and the imminent move of the Chancery, Commercial and Technology and Construction Courts to the new Rolls Building.

Mrs Justice Gloster has long been influential in case management matters. I once heard her describe  voluminous paper bundles as “counsel’s comfort blanket”. The whole Times article is an interesting one, so it is a pity that you cannot read it. I will, however, set out what it says about disclosure:

Inquiry blog – Discovery of Documents in Australian Federal Courts

An Inquiry into the law, practice and management of the discovery of documents in litigation before Australian Federal Courts was launched by the Attorney-General in May 2010. I wrote about it at the time (see Terms of Reference for Australian Discovery review), and see it as one of the most important pending developments in discovery (and therefore necessarily in electronic discovery / e-disclosure) in hand anywhere in the world at the moment. The other, of course, is the UK’s e-disclosure practice direction and electronic documents questionnaire which will take effect on 1 October 2010.

These two initiatives have significance, even for the US as it struggles with the implications, in time and in costs, of handling electronic documents proportionately. I am moderating a panel at the Masters Conference in Washington on 4 to 6 October which will consider these UK and Australian developments and will suggest that even the US has something to learn from them.

The duty of consulting and reporting on discovery falls on the Australian Law Reform Commission (ALRC). The ALRC has set up a blog called Discovery of Documents in Federal Courts to report on its progress, to raise subjects for discussion and to capture comments. The Attorney-General’s Terms of Reference can be found there; as I said in my original post, the reiterated use of the words “as early as possible” points the enquiry in what is obviously the right starting place.

ILTA 2010 wrap

This is my third (and last) article about ILTA 2010 Strategic Unity which closed in Las Vegas last week. My first article was a scene-setter, designed to give the flavour of the event and to explain why I thought it important for the UK to know what is going on in the legal technology market. The second article was largely devoted to the two sessions which I attended, on defensibility and on cloud computing. This article is about some of the people, companies and products which I came across.

I am not here solely concerned with my home market, the UK, but that well illustrates the growing need for lawyers to know something about the range of legal technology providers. The cumulative effect of the new practice direction and electronic documents questionnaire and of some recent cases (the ones I characterise as the “incompetence cases”, turning more on sloppiness and ignorance than on fine points of law), is that many UK lawyers will make their first acquaintance with electronic disclosure during the coming year. It is not, of course, that the problems have been invented by the cases or by the changes to the rules; most potentially disclosable documents are electronic, and few cases can be conducted proportionately by printing and reading them all.

If many UK lawyers will make their first call to a provider of litigation software or services for the first time over the next 12 months, their US counterparts will be making similar calls. The US case law continually raises the bar, not because it is binding on other courts, but because it redefines the standard of care expected of lawyers generally; clients expect more for less in the US as in the UK; the technology evolves continually; every player snipes at its rivals’ costs models, but competition keeps overall costs stable at worst; companies merge with and acquire each other, and individuals move from one provider to another. It is hard enough to keep up even if you already have experience of electronic discovery.