Thomson Reuters 6th eDisclosure Forum in London

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 fiBrowning Mareanrst. 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 »


Consultation paper on Discovery in Australian Federal Courts

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 »


Two podcasts and a video on electronic disclosure

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 »


A week of law, justice and public opinion

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 »


The InnoXcell eDiscovery Exchange Platform in Singapore

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.

Chris Dale, Craig Carpenter, Steven WhitakerWhy 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.

Eddie Sheehy | Steven Whitaker | Vince Neicho | Yeoung Zee Kin Read the rest of this entry »


6th Annual eDisclosure Forum on 15 November

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.

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If judges can rate barristers then barristers should be able to rate judges

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.

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From Clearwell in Cornhill to Millnet on Millbank via Memory Lane

November 10, 2010

I went to Millnet’s 15th birthday party on Friday and, in consequence, wound up with very sore feet. That is not the non-sequitur which it may appear to be. The day began with an e-disclosure talk and ended with an e-disclosure party, but included a long walk and took in some recollections of the past and ruminations on newly-admitted solicitors, Apples (and other fruit and veg), the right to take photographs in public, and other things touching on my wider interests.

The e-disclosure element came with a meeting with Clearwell’s UK team, where my purpose was to bolster their roles as allies in the spread of understanding about electronic disclosure. Relatively few lawyers seem to know the rules, including many of those who rail against the new practice direction and the alleged burden of its questionnaire without apparently having read either of them. There are also many who assert that the technology for handling electronic documents is expensive, without either suggesting alternative methods (just ignoring them does not count) or making a telephone call or two to find out what the cost might actually be. More subtle, and harder to grasp in some ways, is the very close relationship between what the rules require and the range of technology solutions which exist. If the lawyers need to understand this inter-relationship, then so do the solution providers, which is why I am always happy to talk to them.

My broad theme is that there is a higher discretionary element in the rules than people realise, and that there is more to the technology than a bare recital of functions and benefits may suggest. There is a close match between the obligations of transparency and cooperation required by the rules and the ability of he technology to help the lawyers to assess the relationship between value and cost – the components of proportionality. Proper use of the right technology allows the lawyers, for example, to test the effect of adding or removing keywords from the list being discussed with opponents. If the technology can show that the inclusion of a particular keyword will add 50,000 documents to the disclosure set without any obvious benefit in terms of the evidence, then there is money to be saved – an obvious example of technology as a facilitator of informed discussion. Read the rest of this entry »


Rybak v Langbar sends warning to those who destroy evidence

November 8, 2010

Extreme cases do not necessarily add materially to our understanding or give us as much guidance for the future as one might think. Rybak & Ors v Langbar International Ltd [2010] EWHC 2015 (Ch) (09 July 2010)  is what would be called a spoliation case in the US and some other jurisdictions. It is important because we do not have many reported judgments on such matters. The bulk of it, however, is taken up with the judge’s painstaking analysis of the key facts of the alleged document destruction, leaving no one in doubt that there were deliberate acts aimed at suppressing potentially disclosable documents. Once that had been proved, there was little room for argument about the conclusion. The case certainly acts as a warning to those who might be tempted to tamper with their laptops before handing them over, but it gives us no new law.

It would be fair to say that the judgment is rather longer and more complicated than one might think necessary, parts of it reminding me of an undertaker going round with a second set of screws to make absolutely sure that there is no escape. The repetition extends to one passage which is an exact copy of another, suggesting that copy/paste was used where cut/paste was intended (Paragraphs 21-22 are more or less identical to paragraphs 31-33 for the benefit those who, reading it in the middle of the night as I did, might think that their minds must be wandering).

I am not burdened by the need to prove what happened, so my summary can be relatively short. Reducing it to its simplest: Read the rest of this entry »


A useful guide to sources on EU Data Privacy Laws

November 8, 2010

The Guidance Software Newsroom carries a new article by Denise Backhouse of the eData Practice of Morgan, Lewis & Bockius, LLP headed Master European Data Privacy Laws. I refer you to it because it is expressly intended as a guide to useful sources of information on EU data privacy and data protection, a subject which exercises many US lawyers but not, apparently, to the extent that they feel the need to learn about it in advance of their next major EU data collection exercise. Denise’s article may help them to understand what the issues are.

One key to understanding the problem is to know that no one has all the answers, and Denise rightly draws attention to the need to take local advice in each jurisdiction in which the data may have to be collected. As she points out, a “jurisdiction” is not just the whole EU, nor merely any legal state within the EU, but can include smaller units like individual Länder in Germany. Knowing even that much is a good start for those who tend to approach EU data collections as if the writ of an American court runs everywhere.

Denise and I were on a Guidance Software panel at IQPC’s conference in Brussels last year, and were more recently on a London panel organised by Recommind. The subject comes up again on a panel I am on at Georgetown on 18th and 19th November, and Denise and I are covering the subject, together with Master Whitaker at IQPC’s Document Retention and EDiscovery conference in Munich starting on 29 November. I am moderating, and Denise is the main speaker, as befits her status as one of the few US lawyers who is authoritative on the subject. Master Whitaker will talk about the use (and misuse) of the Hague Convention, and I will talk about the cultural differences which lie at the root of the conflict between US demands for documents and EU unwillingness to part with them.

You need practical as well as legal help when stepping into the deep waters of EU data collection, and that means a technology supplier with experience in the area. Sticking to those who have come to my attention recently (so don’t all write in if I have missed you off my list), FTI have recently announced a new consultancy service FTI Investigate aimed at helping with EU collections, I have written a paper (not yet published) about Iron Mountain’s services on this subject, Epiq Systems has a fully-staffed office in Brussels, and Trilantic (now part of Huron Consulting Group) has a section of its website which links to the laws of every relevant jurisdiction.

Look, perhaps, at the list of those sponsoring the IQPC Munich event referred to above which, in addition to most of those already mentioned above, includes AccessData, Alvarez & Marsal, Clearwell, Commvault, Ernst & Young, KPMG and Symantec. They will be there because this is territory which they know, so ring one (or more) of them up before you pack your bags to set off on what may appear to be a routine data collection exercise. But perhaps read Denise’s article first, and follow some of its useful links.

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Changes in the UK eDisclosure market: Huron acquires Trilantic just after Grant Thornton acquires Legal Inc

November 4, 2010

The consolidation of the UK and international e-discovery market took a further step today when Huron Consulting Group announced the acquisition of Trilantic. This follows the recent announcement that Grant Thornton had added Legal Inc’s people and expertise to its range of investigative, forensic and litigation services.

For the moment, I have little to add to the press release, but I will be talking in due course to both Lisa Burton, co-founder of Legal Inc, and Nigel Murray of Trilantic, to find out more about what these acquisitions actually mean in terms of the range and depth of services offered to clients, particularly UK clients.

There is a temptation to assume that fees march in step with the size of the provider, that is, that it must necessarily cost more to involve a large organisation to help with e-Disclosure. This perception is derived from two things, neither actually relevant: firstly, this is almost invariably what happens when law firms get bigger, so lawyers expect a corresponding hike in fees when a smaller provider is acquired by a larger one; secondly, larger providers are able to handle larger jobs which necessarily involve fees proportionate to the work which is to be done. That does not mean, however, that an international software company or one of the big consulting firms such as Ernst & Young, KPMG, FTI or Grant Thornton is not willing and able to compete for smaller jobs.

You will only find out by making contact with a broad spread of providers and finding out what the cost implications are of jobs like yours. Quite apart from the point about untested assumptions, the engagement of a big ally allows mid-sized law firms to take on work which would otherwise be beyond them. You happily engage a big-name barrister (whose fees will indeed reflect his or her status) in order to play in the big game; why not find out what it would cost to team up with a top-flight technology supplier? You might be pleasantly surprised, but if you don’t ask, you will never know.

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Getting back to the e-Disclosure day job

November 3, 2010

Although it may seem that I spend most of my time in the departure lounges of the world, travel is a relatively small element of a typical month’s work. I am back to the meetings, the platform and media opportunities and the writing which fulfil my obligation to find out about e-disclosure problems and solutions and to try to match the one with the other. The travel informs that, but it is not an end in itself. I take the opportunity to summarise what the ends, and the means, are so far as I am concerned.

Douglas DC3Some semblance of normality descends after a month which kicked off with the launch of the UK eDisclosure Practice Direction and included visits to Washington, Toronto and Singapore. It would be easy to get the impression that travel is my main activity, but last month is, fortunately, not representative. I clocked up 27,936 air miles (the distance around the equator is 24,783 miles), and two of the conferences involved a fair amount of activity – planning in advance, taking part in sessions, and writing them up afterwards. This is, nevertheless, an activity which is ancillary to my main role.

Many years ago, I did a stint in Uzbekistan for an EU-funded project. One of the legacies of that is the deep hatred of the whole EU institution which you may have detected – the waste, the expensive, self-serving bureaucracy, and the very strong feeling that a large group of elected representatives and appointed officials have created an interfering monster whose primary function is to give them lucrative employment. The other legacy is that, for years afterwards, many people assumed that working in Tashkent was my main occupation, whereas it was in fact run in parallel, and only briefly, with litigation software development and consultancy work in the UK.

The same is true of the trips I do now – they are important, interesting, non-trivial in time terms, and allow a two-way traffic in understanding e-discovery problems and solutions, but they are not my main function. They are not compatible with writing, for which I require absolute silence, no distractions and a good supply of coffee and cigarettes, none of which are available on aeroplanes. Read the rest of this entry »


Master Whitaker and Trilantic encourage e-Disclosure in Dubai

November 2, 2010

There is much emphasis in these pages on the fact that discovery of documents (“disclosure”, for some reason, in England & Wales) is a common law tradition not found in civil law jurisdictions such as those of mainland Europe. We tend to discuss e-discovery / e-disclosure as if it were merely a method of complying with the rules, and may overlook the reason why discovery plays such a large part in common law civil court proceedings.

We have discovery because the documents are usually the best source for the facts. Oral evidence and deductions, however well-intentioned or carefully arrived at, are no substitute for the documents which evidence what people said and thought at the time. If discovery is now an even bigger component of cost than it used to be, that is because of the ease with which we can create and disseminate recordable information, and not, as some seem to think, because rule-makers and technology suppliers have conspired to exaggerate the problems and the cost.

The Dubai International Financial Centre (DIFC) could presumably have chosen any model when it defined the dispute resolution processes for its court. One assumes that it is the primacy of contemporaneous written evidence which led it to adopt something very similar to the common law discovery processes (the court is in any event expressly established as a common law forum).

An article in The Gulf Today of 20 October headed DIFC courts initiative provides coaching in e-Disclosure domain reports on a panel moderated by Nigel Murray of Trilantic, which has recently opened an office in Dubai. The panel comprised Steven Whitaker, Senior Master of the Senior Courts of England and Wales, Queen’s Bench Division, Sir Anthony Evans (former Chief Justice of the DIFC Courts) and Graham Lovett, Managing Partner of Clifford Chance Dubai. Read the rest of this entry »


Another London doorway to Equivio technology

November 2, 2010

Legastat is the latest London-based e-disclosure services provider to offer Equivio’s technology for speeding up the identification of redundant data and enabling early case assessment. It is not the only such provider, and the same technology is available as integrated components of some software solutions.

There are not many providers of electronic document services whose logo includes the words “Established 1953″. It was obviously a good year for those whose involvement in electronic disclosure was necessarily preceded by a long period doing something else. It was the year in which I was born and it is the year in which Legastat was founded, and both of us had to occupy ourselves elsewhere until e-disclosure came along. I was a solicitor and Legastat was a provider of printing and copying services. When I was an articled clerk, I used to go to its premises in Carey Street, at the back of the Royal Courts of Justice, for urgent copies, a service which it still provides from the same premises.

More recently, it has added e-disclosure services to its more traditional offerings, now under the direction of Casian Sala. It crosses my radar now because it has augmented the services offered to its clients by taking Equivio’s technology for identifying near-duplicates and e-mail threads. It joins many of its rivals in the UK litigation services market, Trilantic, Hobs Legal Docs, and Millnet among them, on the list of those who provide Equivio’s technology (I will come on in a moment to those who provide them as part of and in addition to their own software solutions). Read the rest of this entry »


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