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 »


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