Planting eDiscovery ideas inch by inch and step by step

Every article could cover one more topic, bring in another side-reference, or round out the discussion with another example, parallel or exception.  Sometimes it is best to stick to one core subject.

The continent of Europe is so wide,
 Mein Herr.
Not only up and down, but side to side,
 Mein Herr.
I couldn’t ever cross it if I tried, 
Mein Herr.
So I do..
.
What I can…
Inch by inch..
.
Step by step…
Mile by mile…
Man by man.

I am not sure that Cabaret’s Sally Bowles would make a great role model, but her meticulous approach to getting her arms round something, as described in the song Mein Herr, is spot-on. Take one subject, get everything you can out of it, and move on to the next. it is much easier if you stick to one at a time. With experience, you can perhaps take on more than…. well perhaps I have exhausted the analogy already. I only really wanted the “inch by inch, step by step” bit for my immediate purpose.

My December 23 post Judges and automated coding tools for electronic discovery drew an immediate comment from Joe Howie of Howie Consulting and the e-Discovery Institute. Joe is co-author, with Anne Kershaw of A. Kershaw, P.C. Attorneys & Consultants, of the recent Judges’ Guide to Cost-Effective E-Discovery which, in 25 brisk pages, gives judges an introduction to a subject which many of them find difficult – see its contents page for an idea of what is covered. Deciding what the strict obligations are in relation to electronic discovery generally is hard enough; it is those words “cost-effective” which make it particularly difficult. Any fool of a lawyer can give discovery of everything which might possibly be relevant, and any fool of a judge might let them have it. Similarly, it is easy enough to challenge the other side’s discovery, leaving the judge to decide whether the demands represent an unwarranted tactical pressure or a legitimate demand for evidence – or, indeed, ignorance on the part of both parties. Assessment as to what is easy, what is difficult and what is reasonably practicable at a reasonable cost is required of the judge, and this book aims to help judges in this respect. I was at its launch party in Georgetown in November and the critical reception (in that most critical of audiences) was uniformly positive.

Strong UK presence at LegalTech 2011

LegalTech 2011 is only a few days away and the programme is packed. Almost everyone whose name has appeared in these pages is taking part in something, and I will not attempt to list them all. Following on, however, from my recent piece about the Georgetown Advanced e-Discovery Institute (see International discovery, sanctions, ethics and US-UK comparisons at Georgetown) and the growing mutual interest in US e-Discovery and UK e-Disclosure, I thought it worth drawing your attention to the sessions involving UK participants. If I have missed any, please let me know.

Epiq Systems have two panels involving well-known UK participants. Greg Wildisen of Epiq moderates a panel called Navigating the Challenges of Cross-Border Regulatory Investigations with panelists including Professor Dominic Regan and David Cracknell of Slaughter and May’s London office. That is followed by a panel called Managing a Global Review while Minimising Risk moderated by Laura Kibbe of Epiq. The panelists include Senior Master Whitaker and Neil Mirchandani of Hogan Lovells in London. Non-UK participants known to readers of this blog include US Magistrate Judge Andrew Peck (who has teamed up with Master Whitaker in various jurisdictions, including Brussels and Hong Kong), and David Kessler who has recently moved to become Co-Head of E-Discovery at Fulbright & Jaworski – an entertaining and informative fellow, David, as I discovered to my relief when he was on a LegalTech panel which I moderated for Epiq last year (I say “relief” because it can be an interesting business, moderating panels of people you have never met before). Anyone interested in global and cross-border matters should attend these sessions.

Andrew Szczech of Kroll OnTrack UK takes part in a panel called Trends in Social Media and Cloud Computing. Jan Durant, IT Director of Lewis Silkin is on a panel called Business Processes Utilising SharePoint. Alex Dunstan-Lee of KPMG in London is doing a session called The Clearwell E-Discovery Platform: did you know? UK solicitor Mark Ross, VP legal solutions at Integreon, is covering Legal Process Outsourcing: Ethical, Practical and Legislative Considerations.

Apart from the UK, the non-US world is represented by Michelle Mahoney, Director of Applied Legal Technology at Mallesons Stephen Jaques in Australia, talking about the Intersection of Project Management and Practice Support. She was anointed Practice Management Champion at ILTA last year, so knows what she is talking about.

Judges defend our long-term liberties from short-term politicians

Can you get Henry VIII, necrophilia, the Human Rights Act, Phil Woolas, quangos, rubbish bins, the nuances of the English language, New Labour statism and health & safety into one serious article about the role of the judiciary vis-à-vis the executive? I’ll give it a try.

The relationship between parliament and the judiciary reached its nadir under the recently departed Labour government. The battlegrounds were the Human Rights Act, the so-called “Henry VIII” powers with which Labour sought to by-pass parliament, and the inverse relationship between the quantity and the quality of the mass of legislation which poured out of Westminster. Matters do not seem much improved under the coalition. The Lord Chief Justice, Lord Judge, has been making his views known.

The Human Rights Act

To some, the Human Rights Act is one of the signs that Britain is going to the dogs, whilst others see it as a fundamental assertion of the rights of ordinary people against the state. Most of us, politicians included, would like to pick and choose, depending on our own views of the individual outcomes of cases brought under it. The same applies to other circumstances where our liberties are at stake, where the authorities increasingly see our rights as a barrier to their powers rather than something which they were elected or appointed to protect, and we expect simultaneously to be guarded and left alone. To a judge, it is a more sober matter of applying the law to the facts.

The incoming Labour government in 1997 was quick to introduce the Human Rights Act, which passed into law in 1998. Almost immediately, however, it found that the Act stood in the way of things it wanted to do. Tony Blair, not a man to let little things like democracy and the rule of law stand in his way, was openly irritated by judicial intervention, as was his first Home Secretary, Jack Straw, (who introduced the Act). Straw’s successors, especially David Blunkett (a man whose undoubted political cunning seemed unqualified by common sense or self-awareness) seemed to see the judges as the enemy, whilst Jacqui Smith (for whom “home” and “secretary” somehow seemed just the right words) behaved as if the entire population was the enemy, and certainly made us feel it. Considerable political capital was expended in the government’s fight for 42 days’ detention of possible terrorists, which trampled on much more ancient rights. The government thought it almost treasonable that judges “used” the Human Rights Act to thwart the executive’s stance on possible terrorists – I put “used” in quotation marks to emphasise the gulf between judges applying the law as they found it and the government’s perception that it was judicial spite which turned their own creation against them.

The conflict continues to bubble along in matters both specific and general. A specific example is the recent decision by an Immigration Tribunal to allow an asylum seeker to remain in Britain despite an unlicensed driving career which included mowing down and killing a child. Prime Minister David Cameron was outraged at the tribunal’s conclusion that the driver’s subsequent marriage and fatherhood meant that his human right to family life trumped the ordinary man’s view as to what was right. Outrage, however, is no substitute for a cool appraisal of the law – see this post on the Human Rights Blog for an analysis and for comments both ways which show why Joe Public (that’s you and me – and, in this context, the government of the day) do not get to convert our instinctive judgments into action.