Nigel Murray rides again for Help for Heroes

It is time again for that annual ritual known as “Shrink the Nigel”. It is a kind of cultural fusion, merging two French traditions – the making of Pate de Foie Gras and the Tour de France – with a variant on the traditional British stiff upper lip which in this case involves stiff lower limbs. Standing in for the goose used for foie gras, you take Nigel Murray, MD of Trilantic (now part of Huron Consulting) and fill him with fine food and drink from mid-June to mid-February – I myself have been privileged to observe this part of the tradition in restaurants around the world, from London to Hong Kong to several US cities. Phase 2, the stiff lower limb stage, takes place away from the public eye, when Nigel, by now suitably rotund, takes to his bicycle and starts burning off the weight with a punishing regime of exercise, building up the miles and the muscles as he prepares for Phase 3. This, the Tour de France stage, involves cycling for 350 miles – up to 80 miles a day – from the battlefields of Northern France en route for Paris along with 299 others.

The cause is a good one. Help for Heroes exists to provide support and rehabilitation for military personnel injured in war. There is information here about this year’s Big Battlefield Bike Ride, which begins on the Normandy beaches, and Nigel has his own web page here from which you can make a donation. Last year, he raised over £3,500 cycling from the Somme battlefields. His target this year is £6,000 of which, as I write, he has already achieved nearly £1700 including Gift Aid.

Metadata and Data Exchange Formats in Electronic Disclosure – a US model for a common-sense approach in the UK

UK lawyers are rightly sceptical about the relevance of US e-discovery rulings to their own cases. Occasionally, however, one comes along which is grounded in universally-applicable common sense or which throws light on some basic technological point which has not been tested in the UK. Judge Shira Scheindlin’s ruling in the Day Laborer case is one such.

Every so often, a US ediscovery case appears which is illuminating to UK lawyers dealing with e-disclosure. I put it like that, because many US cases have the opposite effect when recited to a UK audience. The general principles are broadly the same, but most US cases rely on terminology and principles – of “sanctions”, “defensibility”, “preservation” and “legal hold” – which all have their equivalents here but which we decline, so far at least, to get quite so worked up about. If the US thinks us backward as a result, then we are content to be thought so. Some of our key principles – that you do not have to look under every stone when searching for disclosable documents, for example – are near-heresies in the US.

They will come to our way of thinking eventually and, meanwhile, we have quite enough to do at a more fundamental level. When Lord Justice Jacob challenged the view that “No stone, however small, should remain unturned” (Nichia v Argos, at paragraph 50), he was enunciating a principal vital to the meaning of proportionality which needs to be clearly understood; he did not mean that we could ignore electronic documents completely if it all looked a bit complicated. Master Whitaker’s judgment in Goodale v the Ministry of Justice simply applies existing principles of proportionality, active management, discretion and co-operation which, if understood correctly, could reduce the cost of electronic disclosure in almost any case. The new Electronic Disclosure Practice Direction 31B is neither complicated nor technical, and is easily understood by anyone who bothers to read it – as some commentators may care to before they next criticise it as unduly burdensome. Let’s bite that lot off before we start inventing new problems to conquer.

Whilst most US ediscovery cases are of limited appeal in the UK, we have the luxury of picking and choosing the bits we like – as in fact do US courts, since most of the Opinions are merely persuasive rather than binding outside the court in which they were made. Some Opinions give us painstaking explanations of basic facts which are relevant and helpful in any jurisdiction, and one of those is Judge Shira Scheindlin’s Decision in the Day Laborer case (National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2 011 WL 381625 (S.D.N.Y. Feb. 07, 2011) which was about a Freedom of Information Act (FOIA) request. It concerns the exchange of metadata and other matters relating to the form in which documents are handed over to the other side and, in looking at it from a UK perspective, I am going to skip most of the differences between our respective systems, the controversies over Judge Scheindlin’s ground-breaking opinions on other matters, and broader questions about lawyers’ discovery /disclosure duties, and just focus on metadata.

Davis v Grant Park – EDiscovery Sanctions just like the Advantage Rule in Rugby

I am keen on parallels and analogies which help illustrate serious subjects by drawing on historical, fictional,  cultural or any other references which may throw light on (or at least help us to remember) things we ought to know. The brief summary of US Magistrate Judge Facciola’s opinion in Davis v Grant Park on the Gibbons E-Discovery Law Alert made me think immediately of the rules of Rugby Union. There are parallels between the penalties in court and on the rugby pitch, and a side-wind brings me an Australian connection which fits my theme.

I have talked about rugby before, on the occasion of an enjoyable day out as a guest of FTI at the Varsity Match in December. That article prompted Kate Holmes of FTI to ask me on Twitter to explain the rules of rugby, an invitation I declined on the grounds that 140 characters would barely get me started. I am not really qualified anyway to expound upon the rules, but one that I do know is the Advantage Rule. I will come back to that, and its relevance to Davis v Grant Park in a moment.

The full title to the Gibbons summary is Davis v Grant Park holds that sanctions motions for breach of duty to preserve electronic communications are premature until the close of discovery. Judge Facciola refused a motion for sanctions for the alleged destruction of electronic communications finding it “premature to consider the question of sanctions until discovery ends and the court can assess accurately what prejudice, if any, the loss of the electronically stored information has caused”. Judge Facciola cited his own decision in D’Onofrio v SFX Sports Group, Inc., where he said:

“[i]t is only after establishing the prejudice the plaintiff suffered that any resulting sanction will fairly address that prejudice, consistent with this Circuit’s insistence that any sanctions imposed be a function of the prejudice done to a party by its offending opponent.”

I have written before about the non-US perception of ediscovery sanctions, most recently in an article called The ups and downs of US ediscovery sanctions. I said there that “To my eye, if one wanted to design a system which was absolutely certain to encourage satellite litigation, tactical play and (as a defensive reaction) excessive discovery as a back-covering exercise, you would come up with something like the present sanctions regime”, whilst cross-referring to an earlier article which made it clear (I hope) that I was alert both to the rationale behind sanctions in appropriate cases and to the fact that (as Judge Facciola himself put it in a conference speech) judges do not wake up every morning asking “Who shall I sanction today”. For all that balance and fairness, however, the outsider’s perception is that the fear of sanctions, and particularly sanctions which are disproportionate to both the offence and the prejudice, drive up the scope, and therefore the cost, of electronic discovery. D’Onofrio and Davis v Grant Park are welcome correctives to this.

Levelling out after LegalTech

LegalTech, UK educational sessions and calls from law firms, an LPO conference, Irish eDiscovery, litigation as an invisible export, legal blogging in New York and eDiscovery in Germany all help to pass the time.

By and large, I find that the amount of work which has to be done in a year broadly matches the time available to do it. That is in part thanks to variables which I can control – the things I choose to write about as opposed to those which I must cover, and whether I go to bed at 2.00am or 3.00am – and is explained in part by a variant on Parkinson’s Law. That, you will recall, says that “work expands so as to fill the time available for its completion”. One way of defeating that is to leave important things until the last minute, ticking off the non-urgent things (which would otherwise never get done) so that the time available for completion of the urgent things is reduced. It infuriates conference organisers (for whom everything is apparently needed TODAY) but if I dropped everything to comply with their deadlines, I would never get anything done.

Sometimes, however, tasks stack up like aeroplanes at dawn over Heathrow (an example I pick with particular feeling after my last aimless circling of the Home Counties). February is invariably one of those times, thanks to the cuckoo which is LegalTech. Its three days always take at least two weeks of my life in preparing for sessions, getting there, being there and writing about it afterwards. The result is an uneven spread in my articles – I wrote six in one day just before I left but only two in the ten days after my return. I get bullied, you know. It took a while to do my report on LegalTech and, just before I published it, I received an e-mail saying “I sense some collective thumb-twiddling amongst your readers – the biggest show in town has come and gone and the site is still welcoming Digital Reef etc” (a reference to the last post which I did before I left, about new e-Disclosure Information Project sponsor Digital Reef). It is some consolation to find that Andrew Haslam has only just published his account.

It is worth, occasionally, just running through what is happening, to show how many subjects get swept together under the umbrella of electronic disclosure. It touches on a lot of topics, as the extract below from my slide set shows. I do not disdain PowerPoint, as has become fashionable, and use my slides at educational sessions to allow me to canter over the ground more or less without taking breath – the audience can always ask me back for expansion on discrete subjects.

Clearwell white paper: the Next Generation of Concept Searching

A recent article by US ediscovery expert Tom O’Connor discusses the ever-green subject of ediscovery certification. One of the points he made was to do with understanding basic concepts before we get too ambitious in describing (still less certifying) proficiency in wider aspects of ediscovery skills. He gave as examples questions like “what is a tiff” and “what is a native file?”

The next tier up from simple descriptive terms like this are the technical terms which the experts bandy about between themselves as if they were common currency. A good example of this can be found in the various types of search technology which have been developed to handle large volumes of documents.  I have a list of them on one of my slides and do my best, along with many other subjects which I cover in a rapid-fire one-hour talk, to give the audience the briefest summary possible of what “predictive coding”, “e-mail threading” and “clustering” mean.

All these technologies, and others, serve different purposes to the same end. They vary in sophistication (although, of course, an apparently simple function in user terms may have an extremely clever algorithm below it). On the face of it, “concept search” is easier to describe and to understand than some other technologies. After all, we have had Roget’s Thesaurus since 1805, so the idea of semantically-linked words is not new.

Clearwell has produced a white paper called The Next Generation of Concept Searching to back their Transparent Concept Search functionality. It describes in straightforward terms why simple keyword searching is an inadequate way of finding relevant documents, using the multiple meanings of the word “strike” as its prime example. Very large sums of money, and not a little risk, turn on doing the best job one can of finding documents required in litigation and analogous proceedings, and I commend this paper as a straightforward guide to what concept searching is and why it helps in 21st century document search.

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Welcome to CY4OR as a sponsor of the e-Disclosure Information Project

I am very pleased to welcome CY4OR as a sponsor of the e-Disclosure Information Project. I wrote about them a few days ago, but that was about their marketing, which I rated highly. What about their work?

CY4OR was founded in 2002 with specialist expertise in computer forensics and data collection for crime, fraud and civil disputes. There is more to this than just examining a computer to prove guilt – computers are only one of many devices which may be may require examination, and a forensic expert may equally be engaged to prove innocence, something which is easily overlooked. Mobile phones and other portable devices are an ever-growing source of information as these devices become more and more sophisticated and more widely used. Call history attracts attention as an obvious piece of evidence (all those suspicious spouses get the subject into the papers), but that is just the start – names in the address book, and the record of transfers via iTunes or WiFi connection history, are just some of the details which can be pulled from a mobile device. Each new platform and development brings new potential for evidence tracking.

The ability to copy data from a range of devices shades naturally into electronic disclosure for the purposes of civil litigation, for internal investigations and for regulatory purposes as well as for matters involving crime. That in turn leads into the next stages in electronic disclosure, such as processing data to remove duplicates and unwanted files (at the simplest level) before the data can be analysed for relevance.

Welcome to First Advantage as a sponsor of the E-disclosure Information Project

I am very pleased to welcome First Advantage Litigation Consulting as a new sponsor of the e-Disclosure Information Project.  First Advantage was already a well-established forensics, litigation consulting and eDiscovery company when I met them at my first LegalTech in 2007; they set up in London shortly afterwards. I often come across Robert Brown, now VP of Eurasia Operations, at conferences, where he speaks lucidly about forensic data collection amongst other things; and I knew Drew Macaulay, Director of Business Development, before he joined First Advantage.

Back in 2007, the forensic and litigation function appeared on the First Advantage website as just one component amongst a broad range of business and information services. The wider group still does all that, but over the years the litigation arm acquired a strong identity of its own (as First Advantage Litigation Consulting) in the US, the UK, Europe, India and the Far East. First Advantage was acquired by Symphony Technology Group at the end of 2010. The result is a niche specialist company within a strong umbrella group.

After that first meeting at LegalTech, I met up with the then Executive Vice President for Litigation Consulting to talk about the company’s plans – it was exactly 4 years ago this week as it happens, and he was in London to recruit staff for the new office. The move to London, he said, was made largely because of the litigation and regulatory involvement in Europe of First Advantage US clients. Proximity was the initial driver for the move to London, as well as the need to manage EU privacy and data protection laws. The ambition was to make the London (and Brussels) offices into players with local business in their own markets within two years. I would guess (I don’t know) that the target was reached well within the two years and First Advantage Litigation Consulting has become an established player in the London e-disclosure market.

Don’t bank on long deferral of UK Bribery Act nor hold strange and unjustified expectations of precision in its definitions

Relatively keen supporter though I am of our relatively new government, even with its Lib Dem make-weights hanging round its ankles, I do wish for rather more coherence in its decision-making, some evidence, perhaps, that today’s policy-making has a heritage older than yesterday’s breakfast. I was going to say that it feels like watching a yacht tacking into a stiff breeze, but actually it is worse than that – it is like being on board a yacht tacking into a stiff breeze. Earlier this week, for example, the banks woke up to find they were subject to a new levy. Last week, we were going to sell all our woodlands to spiv developers who would chain them up before hacking them down; this week, we see the distant flutter of a white flag on this subject and, by next week, the government will probably be planting new woods. At this rate, we might even start building new public libraries instead of closing them down as is presently planned.

Standing in the street in a cold New York dawn last week, I found a tweet from the always quick-off-the-mark thebriberyact.com – “Bribery Act reportedly delayed again confirmed on the Today programme”. I tweeted back “So the most dishonest UK gov’t ever and most corrupt Parliament ever passed a UK Bribery Act and now this gov’t defers it”

A word or two or explanation might be helpful both as to the deferral and to the suggestion that the last government and parliament fell somewhat short of the accepted standards of probity. The latter actually needs little explanation. I have just started reading Peter Oborne’s book The Rise of Political Lying which begins by distinguishing between the personal dishonesty endemic in the last Conservative government and the dishonesty-by-party consciously adopted by Labour even as Tony Blair entered Downing Street, fresh-faced and expressly intent on cleaning up politics. The defining cartoon of his era showed him flogging ermine robes and coronets from a barrow; the emblematic quotation was his claim to be “a pretty straight kind of guy” which caused guffaws up and down the land, not least because he actually seemed to think we might believe him. If he is not thought of as the most dishonest man ever to have occupied Downing Street, that is only because he was succeeded by Gordon Brown. Together they presided over an era in which MPs and peers of all parties fiddled their expenses, lied as policy, sold influence and generally debased the currency of public life. There are only two in prison so far (one more than when I started writing this), but there will be more.

An Englishman Abroad – a personal account of LegalTech 2011

There are plenty of helpful articles about LegalTech 2011, just closed in New York, and about what was on view there. This is a more personal account, aimed at encouraging more UK lawyers to go next year for a concentrated immersion in the subject of electronic disclosure / discovery – the problems, the solutions, the practice and the technology. You can also have a good time.

I was a bit taken aback when the young lady said “You Englishmen always look as if you have stepped out of bed looking like that”. She had just been admiring my suit notwithstanding (or perhaps because of) its style, which belongs 25 years ago when it was made for me. My very conventional black-and-white spotted tie had aroused similarly positive comments. Now she was saying that I looked as if I had slept in my clothes. What she meant, it transpired, was that Englishmen look as if a suit was natural attire, not just something formal put on for show. I am not sure either that that is generally true of the English or any less true of anyone else, but I know how to take a compliment gracefully.

You could not miss the UK contingent at LegalTech whatever they were wearing. It sounds odd now, but the reason I first went to LegalTech five years ago was the calculation that I could see more UK providers and litigation support people in less time and for less expense than by any number of trips to London. I mention this as part of my annual suggestion to UK lawyers that three or four days in New York in February would give them a better knowledge of electronic disclosure / discovery than they will get in a year at home. You still hear in London the rather silly objection that “electronic discovery is something Americans do and look what a mess they make of it”. I am no enthusiast for the American way of litigation, but neither are many Americans. We can borrow the best of their thinking, and their technology, but only if we understand it. There is more to FRCP e-discovery than sanctions and excess, just as an Englishman is more than a double-breasted suit and a spotted tie (there is the accent as well, as we will see below).

This does not purport to be a comprehensive survey of LegalTech and of the technology displays and sessions which comprise the formal part of the show. These summaries by Sean Doherty, Nick Patience and Katey Wood will suffice for that and The Posse List’s Electronic Discovery Reading Room has Applied Discovery’s index of post-LegalTech articles. Although most providers with a UK presence turn up somewhere below, I have no intention of reciting everything I saw nor name-checking everyone I met, and nothing is to be inferred from inclusion in or exclusion from my quick summary. I aim merely to indicate what you can get through in three days if, as a corporate counsel or external lawyer, you come to LegalTech.