Welcome to Symantec as a sponsor of the e-Disclosure Information Project

October 31, 2010

It is a great pleasure to welcome Symantec as the latest addition to the sponsors of the e-Disclosure Information Project.

Earlier today, in my article about Canadian e-discovery (see Lessons from Applied Discovery Proportionality panel in Toronto ) I passed on this advice from the panel there:

A large organisation will not be able to say any more “we cannot restore it because it is not proportionate”. That is like saying “we decided not to keep a filing cabinet”. One should not run proportionality arguments about something one could easily have done. One will not be able just to say “I cannot find them in this morass” because the court will say “You are expected to have a system for this”

I then pointed out the similar message from what I see as the most important section in HHJ Simon Brown QC’s judgment in Earles v Barclays Bank (a message which does not, of course, apply only to banks) :

One expects a major high street Bank in this day and age of electronic records and communication with an in house litigation department to have an efficient and effective information management system in place to provide identification, preservation, collection, processing, review analysis and production of its ESI in the disclosure process in litigation and regulation.

This is exactly where Symantec sits in the discovery process with its well-known Enterprise Vault, whose web page  says that it:

enables users to store, manage, and discover unstructured information across the organization… and … helps customers deduplicate information at the source to reduce costs, delete information confidently and discover information efficiently.

… and that its  Discovery and Search functions give

roles-based access for legal users to search, preserve, review and export electronically-stored information efficiently.

This is exactly what is meant by those who argue that the key to e-discovery lies in the way an organisation looks after its own data. If as a software company you already take responsibility for the archived content – the e-mail, electronic files, SharePoint, instant messaging and databases – of many of the world’s largest corporations, you have an obvious role in the e-discovery process, for the reasons given in my quotations above.

Symantec has recently concluded a survey of 5,000 EMEA lawyers and legal professionals, both in-house and external, across 10 countries. I have not absorbed it all yet, but the conclusion which stood out for me is that there is still a very large gap between respondents’ top-of-the-head reaction to questions about their preparedness and the reality once their detailed answers are analysed. This is consistent with the results of surveys by, amongst others, KPMG and Recommind over the last twelve months. One might have hoped that the interim would have seen either a less confident anecdotal reaction or (and preferably) evidence of movement within companies to tighten up their systems and to have in place the “efficient and effective information management system” referred to by Judge Brown in the Earles decision.

I look forward to learning more about Symantec and Enterprise Vault. Meanwhile, for the reasons given above, they are a welcome addition to the e-Disclosure Information Project.

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Berezovsky v Abramovich – refusal of enhanced disclosure order in the Commercial Court

October 31, 2010

A decision about edisclosure made in the Commercial Court by Mrs Justice Gloster DBE in August has recently been published on BAILII. The case is Berezovsky v Abramovich , the pleaded sum at stake exceeds US$3.5 billion, and the allegations made by both parties are serious ones of dishonesty and impropriety. The application was made before standard disclosure had taken place for what is variously called “train of enquiry” or “Peruvian Guano” disclosure, referred to by the judge as “enhanced disclosure”. No formal application was in fact made and no evidence was filed either in support or in answer. It seems unlikely that the judge would have reached a different conclusion if such evidence had been before her, although her rejection of the application was based in part on its lack of particularity.

The judge did, however, helpfully set out the sort of evidence which a court might expect on such applications, namely:

  • i) what documents or categories of documents might be regarded as liable to be searched for, or disclosable, in accordance with standard disclosure procedures;
  • ii) what wider or different categories of document would have to be searched for if an order for enhanced disclosure were to be made;
  • iii) any indication as to the nature of the searches that would have to be carried out, or the extent of the relevant universe of documents, if an enhanced order were made, or the difficulties, if any, that the conduct of such a search would impose on the parties; and
  • iv) any indication of what inquiries, in relation to which issues, such an order for disclosure would require.

The judgment is short and I will leave you to read the arguments for yourself. The key points, to my eye, include the following: Read the rest of this entry »


Lessons from Applied Discovery Proportionality panel in Toronto

October 31, 2010

It sounds a bit flippant to say that I went to Toronto for breakfast. It certainly would not do as an answer to the immigration official asking the purpose of my visit. Readers with long memories may recall two earlier occasions when I nearly made it to Canada and failed. Since then, I have been back to Australia, and spoken in Singapore and Hong Kong, leaving Canada as a big gap in my close-up view of the common law jurisdictions which require discovery of documents in litigation (the other gap is New Zealand, which I hope to remedy soon). I jumped at the chance when Applied Discovery invited me to a breakfast panel session in Toronto called Understanding Proportionality.

Canadian flag and CN TowerThe moderator was Crystal O’Donnell of Applied Discovery, whose white paper entitled Proportionate Litigation was launched at the event. What you need to know from that, by way of introduction, is the new Rule 1.04 s 1.1 which took effect on 1 January and which says this:

In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

If you are tempted to think that this is just a statement of the obvious, you may care to read the 17 pages which Lord Justice Jackson devoted to the subject of proportionality in his Final Report on Litigation Costs starting at page 27. He says this (at paragraph 5.16) à propos his proposed changes to the UK rules:

“The rules should also provide that the fact that costs were necessarily incurred does not make them proportionate. This should be stated explicitly….”.

Once you see a distinction between costs “reasonably incurred” and those which are “proportionate” you see more to proportionality than merely being reasonable.

Crystal O’Donnell had assembled a first-rate panel. Master Calum MacLeod of the Ontario Superior Court of Justice occupies a position as judicial thought-leader equivalent to that of Master Whitaker in the UK. Kelly Friedman of Ogilvy Renault is Chair of Sedona Canada. Susan Nickle is from Wortzman Nickle a specialist ediscovery practice which describes itself as “the go-to law firm in Canada, assisting corporations and their counsel to find practical ways to meet their ediscovery obligations”.

One of the themes running through the session was the need to find the “golden nuggets”. I propose to adopt the same approach to reporting on the session, picking out, without attribution, the passages with the widest general application. Unsurprisingly, they are ones which recur in every relevant jurisdiction. Read the rest of this entry »


A quick eDiscovery trip to Singapore

October 29, 2010

I got back at dawn this morning from the InnoXcell eDiscovery conference in Singapore. I was only there for the two days of the conference and had only just got back from a one day trip to Toronto to attend Applied Discovery’s breakfast seminar on proportionality. My notes about both will follow, together with a catch-up on what else has been happening. The eDiscovery / eDisclosure world is simultaneously expanding and getting smaller.

In discovery as in so many other things, it is often easier to get the hard things right whilst overlooking the easy ones. In the UK Shoesmith case, for example, the documents overlooked by OFSTED lay in a clearly-labelled folder in someone’s My Documents. One of the speakers at Applied Discovery’s session in Toronto last week drew a distinction between things which can be remedied, albeit at some expense, and things which cannot be put right once the critical moment has passed.

I feel much the same about the planning for some of my foreign trips. The hard things involve rounding up panels, preparing slides, organising flights and hotels, and making sure I take all the files and equipment needed to keep working whilst I am away. Inevitably one overlooks something easy – chargers are an obvious example, and I once discovered that a visa was required only when checking in at the airport. Things like this can usually be put right. This is the first time, however, that I have set off without the only thing which is actually irreplaceable – my passport.  What could be easier to remember or to pick up? My son got it to me in time.

Someone once coined a word to describe a place so attractive and accessible that everyone goes there, so making it neither attractive nor accessible. I cannot now remember what the word is, but I have discovered an equivalent concept in preparing to go away – the work needed to pack everything for working on a long flight is so knackering that you fall asleep on the plane and do none of it. I set off with laptop and iPad loaded with sources of articles and draft papers to write, and then slept from Berlin to Burma. There was not much catch-up time on in the 48 hours which separated my arrival in Singapore and my departure. Read the rest of this entry »


Proportionality making you think and making you laugh

October 22, 2010

My own notes on Applied Discovery’s excellent Toronto panel on proportionality are still in draft. Virginia Henschel,  Vice President of E-Discovery Affairs for Applied Discovery, has beaten me to it, and her report is here. It includes some useful links.

A different view on proportionality (or perhaps it is the same view differently expressed) comes from this week’s Case in Point cartoon from CaseCentral.

CaseCentral Case in Point Parking Ticket

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Addressing the outsourcing of document review

October 19, 2010

The word “addressing” in my title is used here as the opposite of “ignoring”. As with the use of technology, you cannot dismiss the idea of outsourcing document review without finding out who does it, how they go about it, and at what cost. Is your own document review as good as you like to think? Are your “ethical” concerns just a convenient way of closing your mind to the subject? And is not cost-reduction part of the ethical responsibility? It may in fact not be right for you and for your cases, but you don’t know that without finding out about it.

Like the use of accelerated review tools (see Having the Acuity to determine Relevance with Predictive Coding), the outsourcing of document review raises professional and ethical issues amongst lawyers, particularly those who have been brought up to consider it their duty to read every document. The question comes up in my discussions with law firms, and we now have the launch of the latest US State bar ethical code on the subject. Other factors also make it topical.

To save you reading the rest of this, I will say right at the top that the delegation of work of this kind is, as a practical matter, the only way in which many law firms are going to be able to review large volumes of documents at a price which the clients are willing and able to pay. If you have document volumes of any appreciable size, you must at least consider either using technology or outsourcing the work, and probably both. Read the rest of this entry »


Having the Acuity to determine Relevance with Predictive Coding

October 15, 2010

Many commentators have lighted on the paper Crash or Soar – Will the legal community accept “predictive coding?” by Anne Kershaw and Joe Howie, in which they explored whether lawyers will be willing to abide by the results of review accelerators, which they group together with the label “predictive coding”.  The article is based on the results of a survey of eleven legal software companies whose applications or services include review accelerators of some kind. Three of those who took part in the survey are companies which I know well, and happy chance enables me to make a plausible title for this article from FTI Technology’s Acuity, Equivio>Relevance and Recommind’s Predictive Coding.

“Acuity” is sharpness or acuteness. “Relevance” connotes bearing upon, pertinent to, the matter in hand. “Predictive” implies foresight and the ability to anticipate. These are good names, therefore, for products or services whose function is to get you to what matters quickly. The Kershaw/Howie article gets its name from the fact that many lawyers are nervous of reliance on any form of automated review, preferring, or at least claiming, to read every document.

Those who advocate human review must address three points: if predictive coding (I will stick with the Kershaw/Howie label for convenience) can save significant costs without significantly reducing accuracy then the burden falls on its opponents to point to its flaws; consistent accuracy by humans – Monday to Friday, morning till night, across multiple reviewers – is impossible to achieve, at least within reasonable time-frames; and even if you could expect such accuracy, you have no way of verifying it without repeating the exercise with a different set of reviewers, whereas (as Kershaw and Howie observe) “predictive coding is based on human-assisted computer analysis, sets of documents can be examined multiple times using different parameters or sample sets”. Read the rest of this entry »


Sedona Conference Commentary on Proportionality in Electronic Discovery

October 15, 2010

As a shortcut to the Sedona Conference Commentary on Proportionality in Electronic Discovery, I refer you to the excellent  K & L Gates Electronic Discovery Law site  which gives a summary of the Sedona Conference’s eagerly awaited commentary on proportionality together with a link to it (login required). I have not yet read it myself, but the K & L Gates summary sets out what may appear to be statements of the obvious, with the general theme being that the costs of any step should be weighed against the likely benefit of taking that step. If they were in fact obvious, then many of us would be out of a job.

You may care to compare the last point “Technologies to reduce cost and burden should be considered in the proportionality analysis” with paragraph 6(2)of the new UK E-disclosure Practice Direction which says “Technology should be used in order to ensure that document management activities are undertaken efficiently and effectively”.

Are we all saying the same thing, then? Of course, but that it is because it is really too obvious to need saying at all. Why would one not use electronic means to handle electronic documents? There are various stages of denial here: at the bottom we have those who think that electronic documents can simply be ignored, dismissing the whole subject with an airy cry of  “it is disproportionate” whilst in fact having not the first clue as to either side – value and cost – of the proportionality equation;  next up are those who accept that electronic documents exist and must be dealt with, but who treat them as if they were paper – by turning them into paper; beyond them are those who embrace the whole subject with gusto but who, in focusing on the wonders of their technology, overlook the clients’ objective which is not, generally, disclosure / discovery for its own sake. There are shades and variations within and between these categories, few of which are guided by any concept of proportionality.

This is a problem common to every jurisdiction which requires disclosure of electronic documents. I have been to all of them, except Canada. Canada is the source of much thought and practical attention to e-discovery, and the link with Sedona is the Sedona Canada E-Discovery Principles. These were released in early 2008 (in both English and French) and were immediately recognised by federal and provincial courts as an authoritative source of guidance for Canadian practitioners. They were explicitly referenced in the Ontario court rules and practice directives that went into effect in January 2010. Applied Discovery has assembled a distinguished panel discussing the subject under the title Understanding Proportionality . The panel include two Ontario judges and is moderated by  Crystal O’Donnell of Applied Discovery. I am very much looking forward to attending this, and will report back in due course.

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Fulbright & Jaworski issue their 7th Litigation Trends Survey

October 14, 2010

There is no point in my summarising this when Monica Bay has already done so and provided a link to it.

The sentence Asked if EDD for civil actions needs to be curtailed in the U.S., 70% agreed, and 50% said the U.K. “also needs some tailoring is presumably not a reflection on the dress sense of UK lawyers but on the way the rules are used or not used to provide disclosure which fits the case and its issues. Much e-disclosure (to continue the analogy) is like hoping for a well-cut suit and getting instead a whole roll of cloth.

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Technology providers strike up long-term links with clients

October 14, 2010

Since I do not purport to be a journalist, I have the luxury of letting things float around in my head until an angle evolves. Odd strands – things I read or see or which come up in discussions – sit around like ingredients for an as yet unplanned recipe until a context appears.

The context in this case is something which I mentioned in my long omnibus article of a few days ago called Turning e-discovery news and views into a community of interest.  I said I would come back to an interview with Professor Richard Susskind in which he discussed the transition of legal technology providers from being mere suppliers to being trusted advisers to law firms or companies.

The transition has parallels in other areas.  The supply of computer hardware began as a bespoke personalised thing – my first PC was delivered by a man who unpacked it, set it up and showed me how to use it. As competition tightened the margins, suppliers could not make money like that, so they switched to volume box-shifting. Now that everyone can shift boxes cheaply, they need other ways both of attracting attention and adding value. Litigation support services have followed the same path from individual attention to ever-thinner margins on coding and hosting through to co-operative work with clients to make best use, for example, of new culling tools and review accelerators. The next phase moves beyond such transactional co-operation and towards longer-term working. Read the rest of this entry »


Roundup of The Masters Conference 2010

October 11, 2010

“We have been travelling since we saw you last. We have been in America, entertaining the Americans whose need, let’s face it, is greater even than yours. Of course when we’re over there we say that the other way round”

That is how Michael Flanders opened Flanders & Swann’s second selection of comic songs At the Drop of Another Hat in London in 1963. They seem successfully to have crossed the Atlantic divide despite a style which was rooted so firmly in English traditions of education and culture that it more or less excluded the Welsh, Irish and Scotch; the verses to their Song of Patriotic Prejudice – “The English are best” (lyrics and video) would today bring complaints from some humourless official who would investigate it as incitement to racial hatred and arrange a compulsory diversity course. Fashions change in these things – has Hollywood at last given up casting a well-spoken Englishman as the villain in every film? The devolution of powers within the UK, the subservience to Europe which culminated in the Treaty of Lisbon, and Blair’s shameful grovelling to Bush have left us without influence in areas which we used to dominate. Perhaps that is why I am so keen that we should be heard in my own field.

I am just back from Washington, where Master Whitaker and I flew the English and Welsh (but not Scottish or Irish) edisclosure/ediscovery flag at the Masters Conference.  We were joined by an Australian judge, Justice Einstein, of the Commercial List in the Supreme Court of New South Wales.  I am not sure that anyone in the US would have been interested two or three years ago. Before then, as I said in opening my International Judicial Panel, US judges would come to London to tell us, in a rather de haut en bas way, how we should be handling electronic discovery, and English lawyers and judges reacted by disdaining the whole subject. The tide turned with a judicial panel which I organised with Guidance Software in 2008, when we put Judge Grimm and Judge Facciola from the US on a panel with Master Whitaker and HHJ Simon Brown QC from the UK. Since then, we have tapped into and shared not just each other’s thinking, but the developments in other common law jurisdictions; bringing Justice Einstein from Australia to a US platform marked a further step towards pooling judicial thought on this shared problem.

The Masters Conference has grown over the same period to be a very good forum for just this level of thinking. It is big enough to attract a good range of speakers, delegates and sponsors; it is thoughtful without being overbearingly intellectual; the mix of law, technology and practicality is about right; it recognises the importance of local interests without forgetting that there is a wider world out there which is important to US interests both as a market and as a source of ideas.

I give a brief account of the sessions which I attended – I usually do separate posts about individual sessions, but there were thematic links running through them which then would be lost. Read the rest of this entry »


Back from the Masters Conference in Washington

October 7, 2010

I am just off the plane after the Masters Conference in Washington. This is a conference which gets better every year and there is a lot to write about. I was on a panel on early case assessment led by Craig Ball, and had my own panel with an English and an Australian judge. I went to a really good Women in eDiscovery panel, to one on judicial expectations, and to one of the best cross-border sessions I have heard. As always, there were people to meet, and parties and dinners to attend.

It would be good to settle down and write it all up at once, but I am doing a big seminar about the eDisclosure Practice Direction in London tomorrow with Dominic Regan and another on Monday with Master Whitaker. It may take a while to catch up.

In the meantime, you may like to see the the reading list for my international judicial panel and Ron Friedmann’s live blog on the judicial expectations panel.

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London litigation support party coincides with eDisclosure Practice Direction launch

October 1, 2010

I believe that it was a coincidence that almost the entire UK litigation support industry gathered at the Larder in Clerkenwell on the evening before eDisclosure Practice Direction 31B passed into the rules. I do not mean that the presence of dozens of  EDD people in one pub simultaneously was the result of random chance – Bill Onwusah of Hogan Lovells and Jack Bond of Dewey & LeBoeuf fixed the venue and sent out the invitations at about the same time last year. What I mean is that the date was not fixed with the PD’s launch in mind.

The PD was, nevertheless, a recurring topic of conversation, as you might expect. Most of those present were busy and had been increasingly so for some time – as you know, I like to see the whites of their eyes when they are asked how business is going, and I believe that there is plenty of work around. I don’t think this is directly related to the practice direction – that (as I keep saying) is a reaction to the existence of electronic documents, not the cause of them. It is generally felt that the PD will encourage more people to handle their clients’ electronic documents electronically, but that it is because it has engendered more knowledge about cost-effective ways of doing the job, not because it is driving lawyers to do it against their better judgement just because that is what the court expects.

There are a few like that, of course, and I heard reports last night of lawyers muttering about more upfront burdens. I have come across at least two people who carry a copy of my article Over-estimating both costs and risks in the eDisclosure Practice Direction to hand over when this argument is heard. That is what I wrote it for. Read the rest of this entry »


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