November 24, 2010
It is Friday night as I start writing this. I am in BA’s lounge at Washington Dulles Airport after the two-day Georgetown Advanced eDiscovery Institute. There I took part in an international panel, talked and/or listened to the Who’s Who of US ediscovery including a dozen judges, and heard much that was thoughtful and interesting. Comparisons with the UK were inevitable, both those which were expressed in the sessions and those which crossed my mind as I talked and listened. No one is keeping the score, but I think we ended up about even.
First things first. The week began with a conference in London, the Thomson Reuters 6th Annual eDisclosure Forum co-chaired by Browning Marean of DLA Piper US, George Socha and me. Three of us took part in panels at both conferences – Browning Marean, Laura Kibbe of Epiq Systems and me. As you will see from my report of Georgetown, there is increasing crossover between the US and the UK in relation to electronic disclosure / discovery. This may seem obvious – we are all facing the same problems, and suppliers like Epiq are active in both – but the gap is narrowing as we move from dismissal of each other’s approach to a greater willingness to listen to what is being said on the other side of the Atlantic.
The speakers included Senior Master Whitaker, HHJ Simon Brown QC, Mark Surguy of Pinsent Masons, Vince Neicho of Allen & Overy, Laura Kibbe and Deborah Blaxell of Epiq Systems, Ted O’Neil of EMC Kazeon, Bill Onwusah and Matt Davis of Hogan Lovells, Anne Marie Gibbs of Daegis, Jeremy Marshall of Irwin Mitchell and Simon Clark of Pfizer. The audience included several in-house litigation support managers, some suppliers, and lawyers from firms and government, many of them introduced from in-house sessions which I do around the country. My role is to introduce all these players to each other, and in opening the conference I began by asking the audience members to speak to someone whom they did not know. The resulting hubbub was gratifying, and I will do this again. Read the rest of this entry »
November 16, 2010
If Lord Justice Jackson’s review of Civil Litigation Costs included the most important summary of disclosure and e-disclosure of 2010, the Australian Law Reform Commission’s Discovery Review will be the key analysis of 2011. The Attorney General’s terms of reference attracted my attention because of the reiterated phrase “as early as possible”, which seems the right priority for all jurisdictions which require discovery of documents.
The ALRC has now published a Consultation Paper. The closing date for submissions is Wednesday 19 January 2011. So far, I have skimmed it rather than read it in my short gap this week between conferences in London and in Washington. My quick skim was sufficient to see that there is much useful thinking in it and I look forward to reading it properly on the plane.
I did, however, pick up two references in it to things which I have written. One of them, read out of its context, has the potential to misrepresent my views in much the same way as a few carefully chosen words from a play review on a theatre billboard can subvert the original sense. I stand by the quotation, but its words were something I had set up in order to knock them down, not my own opinion. Read the rest of this entry »
November 16, 2010
I have done two podcasts and a video recently which you may find a painless way of absorbing information about electronic disclosure.
I was interviewed last week by Karl Schieneman of ESIBytes earlier this week, on an introduction from Mike Taylor of I-Lit. The interview was given the title E-Discovery Versus E-Disclosure – How The English Handle E-Discovery.
We covered, amongst other things:
- my emphasis on technology as an adjunct to the brain, rather than vice versa
- the new UK Practice Direction and Electronic Documents Questionnaire
- the difference between an approach which collects everything and then seeks the things which matter versus the approach in Goodale v Ministry of Justice which focuses from the outset on the things which matter and work outwards from there if necessary
- the pressure which US-style spoliation threats gives to maximise discovery
- the value of predictive coding and other technical aids and the impetus which Goodale (again) gives to adopt this approach
- the alleged “gold standard” of manual review (and its advantages in terms of billable hours, if not of proportionality)
- the importance of cooperation
- the need for education of both lawyers and judges.
Inevitably (this being a US interview), we turned to the conflict between the US demands for documents and EU privacy and data protection laws. In this area, as in others, the more focused the original scope of disclosure / discovery, the less work than there is to do in identifying and, if necessary, redacting, private (or privileged) information. Read the rest of this entry »
November 16, 2010
Last week saw the mobilisation of a large body of opinion via Twitter in support of the airport “joker” Paul Chambers. If we cannot exactly claim success, we have at least seen how quickly a mass protest can pick up. By contrast, the same week saw a violent student protest which was entirely counter-productive. If the law was an ass in one court, it was guardian of our rights in two others where the courts acted as counter-balance to politicians.
Legal commentator CharonQC (http://charonqc.wordpress.com and http://twitter.com/Charonqc hides a deep concern for freedom and the law behind a façade of banter and quizzical amusement. He was quick to spot the irony of the conjunction between the trial and conviction of airport “terror” tweeter Paul Chambers and the launch last week of Magna Carta’s 800th anniversary celebrations. Those who do not know about Chambers’ twitter “joke” (it was not that funny, really, but equally was patently not serious) can catch the details of the original conviction here and of the appeal here; those who do not know about Magna Carta include the humourless little man in a regional CPS (Crown Prosecution Service) office who authorised Chambers’ prosecution. Quite what to make of the judge, I do not know, and had better not say.
Neither the airport staff nor the police took Chambers’ tweet very seriously. I do not know what it takes to become a prosecutor in a regional office of the CPS – I have always assumed that it is what you do if you aren’t good enough to get a place in a barristers’ chambers or a firm of solicitors. Meanwhile, Twitter is full of people repeating the original tweet with the hashtag #iamspartacus; lawyers are announcing their shame at their profession; greatest living Englishman Stephen Fry has effected a remarkable comeback from his recent vilification; and the little drone at the CPS continues to assert that the prosecution was justified. Read the rest of this entry »
November 12, 2010
The InnoXcell eDiscovery Exchange Platform in Singapore seems months ago, though I have in fact been back for only a fortnight. I wrote briefly about it then (A quick ediscovery trip to Singapore) and promised a round-up of the sessions. I will keep it brief – the primary purpose is to show the commonality between jurisdictions, on which I have said a fair amount recently anyway.
Why do I go to these far-flung places? It is certainly not for the tourism – I was in transit to and from Singapore for as long as I was there, and did not get more than one block from the hotel. It was not just to meet up with old friends – most of the people I saw there are people I have seen elsewhere recently and will see again at LegalTech in February. I have heard quite enough of my own voice recently and do not need to cross the world to hear more. I do not really need any more air miles. Have you ever tried to spend BA’s air miles? The system is cunningly weighted to ensure that only those with infinite leisure and complete indifference as to their destination can ever make use of them. Whilst I appreciate the access to lounges, the ability to jump queues and the occasional upgrade, these things are only of value if you travel a lot anyway, and that gets us no closer to providing a motivation for going.
Read the rest of this entry »
November 12, 2010
I am co-chairman, with Browning Marean and George Socha, of the Thomson Reuters / Sweet & Maxwell Sixth Annual eDisclosure Forum on 15 November at Canary Wharf in London.
Speakers include Senior Master Whitaker, HHJ Simon Brown QC, Mark Surguy of Pinsent Masons, Vince Neicho of Allen & Overy, Laura Kibbe and Deborah Blaxell of Epiq Systems, Ted O’Neil of EMC Kazeon, Bill Onwusah and Matt Davis of Hogan Lovells, Anne Marie Gibbs of Daegis, Jeremy Marshall of Irwin Mitchell and Simon Clark of Pfizer.
This is a UK-focused conference despite having two US co-chairmen. The new UK Practice Direction and Electronic Documents Questionnaire, recent cases, new technology and costs management are all to be covered. The conference sponsors will be on hand to answer questions about the technology solutions which they bring to the problems of electronic disclosure.
November 10, 2010
The Master of the Rolls is considering the idea that judges should rate the quality of the barristers who appear before them, with marks out of ten for various elements in their performance – a kind of Strictly Come Advocating, I suppose. One pictures judges holding up scorecards at the end of each hearing.
Two letters in today’s Times come from judges reacting to this. One, from His Honour Judge David McCarthy, points out that barristers must be fearless in defence of their clients, against the judge if necessary, and suggests that this duty may be compromised if the judge is to report on the advocate’s performance. The other, from His Honour Judge Simon Brown QC, focuses on electronic disclosure and draws attention to Lord Justice Jackson’s recommendations for training for judges as well as for barristers and solicitors, and to existing powers which put lawyers at risk of personal costs orders.
As you might expect from me, I am against this box-ticking approach to quality; quite apart from the fact that judges have quite enough to do already, it reminds me of all those dull little people from Ofsted grading schools and teachers by almost every black and white standard apart from the actual quality of the education received by the pupils – “meeting the target whilst missing the point” as New Labour’s epitaph has it. The market is a pretty good regulator: good barristers get more work and in time rise to become judges; the rest sink to oblivion, perhaps as low as a post at the Crown Prosecution Service – see Judge questions father’s kidnap charge both as justification for my comment and for an example of existing judicial power to make public criticisms of lawyers where, as in this case, the borderline between incompetence and stupidity becomes blurred.
If we must have such an approvals system, then it is only fair that it works the other way round as well, giving barristers the opportunity to rate the judge. Picture a case management conference where the judge has merely ticked a box for standard disclosure, or told the parties to “go away and agree a protocol for disclosure” as I heard one say recently. The judge might get one out of ten for case management because he turned up. The results could be published, and parties could try and avoid courts where the judge ignores his responsibilities in this way.