Back from New York and competing with a cobra

Before I get any more queries of the “Why no new posts?” variety, I have been in New York for a week, primarily for a panel on blogging, tweeting and friending, and for a webinar. It was the week that the UK Bribery Act guidance notes came out, and the week a cobra escaped from the Bronx Zoo and started tweeting, picking up over 188,000 followers in no time at all: “Indiana Jones,  why did it have to be Indiana Jones?” it cried at one point. No doubt the social media consultants, for whom follower counts and re-tweets define significance, will be busy calculating its influence.

My blog, it seems, has been looking after itself – one post written just before I left, Lawyers replaced by computers for ediscovery search – a retrospective had clocked up 1,463 views in a few days, a target I will find it hard to beat, especially when in competition with a cobra. More posts (and everything else), follow shortly, but here are some photographs to show I am still around.

The Apple Store on 5th Avenue

The view Downtown from Morgan Lewis on 40th Street

Early morning at the south end of Central Park

A fire escape

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LDM Global Breakfast Briefing on 7 April – The UK Bribery Act: an International Perspective

LDM Global is hosting a complimentary breakfast briefing on the UK Bribery Act on Thursday 7 April at 8:30am. The venue is the IoD Hub at 35 New Broad Street, London EC2M 1NH.

The theme is the international perspective. The speakers are Rose Parlane, who is a senior associate at McGuireWoods and a member of its Anti-Corruption Group, Don McFarlane, Head of Global Operations and General Counsel at LDM Global, and me.

Whilst the final form of the act and its guidance notes remains the subject of some speculation, its international reach, and the implications for those who do business internationally, will survive the fine-tuning which rumour brings our way. The potential requirement for international data collections, in which LDM Global has considerable experience, is one of the foreseeable consequences of the act.

You can find out more and sign up for this session on the registration page on LDM Global’s web site.

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ZyLAB half-day seminar on 6 April: the UK Bribery Act – controlling the impact on your organisation

E-discovery and information management software provider ZyLAB is hosting a half-day seminar on the UK Bribery Act in Middle Temple Hall on 6 April starting at 9:30am.

ZyLAB’s applications stretch from the long-term information management requirements of companies through to the identification, collection, analysis and production of documents and data required for litigation and for regulatory and other investigations. The UK Bribery Act will sharpen the need for organisations to be on top of all of the information which may be relevant for these purposes.

Speakers include Bill Waite, CEO of the Risk Advisory Group, John Ryan, Records Manager at BNP Paribas, and me. The morning session will be followed by lunch and, for those who are interested, a tour of the Middle Temple.

Contact Melanie Strangwick at ZyLAB via this page on the ZyLAB’s website.

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Lawyers replaced by computers for ediscovery search – a retrospective

The dust is settling on the debate aroused by the John Markoff article in the New York Times of 4 March headed Armies of Expensive Lawyers, Replaced by Cheaper Software. We can’t have that, so I thought I would keep the ball in play for a bit with a round-up of some of the comment stirred by the article. The consensus, for those in too much of a hurry to get to the end, is that the skills matter more than technology, as long as those skills include the ability to choose the right technology for the case.

As with all good journalism, the basic premise of the NYT article appears from the heading – technology is advancing at such a rate that the expensive (and profitable) contribution made to electronic discovery / disclosure by lawyers will become unnecessary. Computers, so the argument runs, will perform searches more efficiently, more reliably and at significantly lower cost than lawyers can achieve, so the demand for lawyer hours will decrease significantly with a consequent reduction in employment prospects for lawyers.

To recap, Ralph Losey was the first out of the traps with a contrary view. His article was headed NY Times Discovers eDiscovery, but Gets the Job Report Wrong. New, highly-skilled jobs will appear, he said, and the vast increase in electronic material will counter-balance new ways of increasing productivity; a wider range of cases will need this wider range of new skills. I took much the same line in my article King Ludd and the Lawyers – e-Discovery and the Luddite Fallacy which gave a quick tour of C19th economic history and listed a range of largely non-technical and non-legal skills such as project management. Steven Levy’s article Watson Takes on E-Discovery covered the change–adoption curve and suggested that the mere appearance of such an article in the NYT marked a transition from the innovators to the early adopters.

ILTA Insight in London on 5 April

ILTA, the International Legal Technology Association, holds a one-day conference in London each spring called ILTA Insight. This year it is on 5 April at the Grange St Paul’s Hotel which, as its name implies, is centrally and conveniently located.

Charles Christian has helpfully summarised the program on the Orange Rag, giving me the choice between repeating his work, copying it, or linking to it. The latter seems to combine ease and propriety, so I point you to Charles’s article which gives the website details, the e-mail address of Peggy Wechsler, the Program Director, and a PDF of the program.

This is always a good event for anyone interested in the wider aspects of legal IT, not just for the sessions (a good selection, as always), but for the chance to speak to others who may be going down the same path as you. I am doing a New Law Journal panel elsewhere in the morning with Drew Macaulay of First Advantage Litigation Consulting amongst others, but will be along later.

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E-disclosure Great Debate at The Lawyer

The Lawyer today carries a report by editor Catrin Griffiths of an edisclosure  panel last week hosted by The Lawyer as part of a series of such debates. The panel included Senior Master Whitaker, Phil Beckett of Navigant, and senior representatives of the three main interest groups – a solicitor, a barrister and an in-house lawyer. Unsurprisingly, a panel of this calibre on this subject drew an audience of 70 lawyers.

I will take two points out of what is already a succinct summary of an hour-long discussion. Master Whitaker said this:

“It’s important for a human to review the volumes of data being produced. Predictive coding software doesn’t review documents, it ranks them [by] how it’s been taught to search for them. Nobody can be certain that there won’t be documents left over, but you have to take that risk.

The point bears repeating, and Master Whitaker takes every opportunity to do just that. No one is suggesting that lawyers give disclosure of documents they have not reviewed. The point of predictive coding and other technology aids is to weed out those documents which one might safely assume will not be disclosable in circumstances where, as Phil Beckett put it, the paper equivalent of some electronic sources can be measured in ESBs (heights equivalent to the Empire State Building).

That inevitably raises the question: what does “safely” mean? Geoff Nicholas of Freshfields is quoted as saying:

“It’s a journey. We’ll use predictive coding when we’re sure it works. We looked at that option with a number of providers and we and our clients were not confident it was currently adequate.”

Jonathan Bellamy of 39 Essex Street added this:

“Most decision-making tribunals are wedded to the idea of human judgement and they’ll need persuading that predictive coding works.”

Is this right? I do not believe that many courts or tribunals get involved in the evaluation of software applications – indeed, I would love to have some information, however anecdotal, which suggests that they do. What they ought to do is press the lawyers for information as to the costs, benefits and risks of reasonable alternative ways of tackling the problem and then take a view, if the parties cannot agree, on the most proportionate way forward.

Virgin nearly screws up my webinar

My apologies if my title has brought you here under a misapprehension as to its subject-matter. It has been that kind of day. “Virgin” is Virgin Media, supplier of telecommunications services which generally work, albeit not at the speeds advertised. “Screws up” is what my head usually says when things do not go to plan, but which my typing fingers translate as “ruins” or “fouls up”; nothing short of the original expression will do for today. A “webinar” is a live or recorded conversation between two or more people, intended for broadcast to a potentially wide audience on some improving subject. “Nearly” implies that I made it by the skin of my teeth.

I was due to moderate a webinar this afternoon with a couple of people from US law firms. Although the theory was that I just had to open and close it, do the introductions and say the formal bits, in practice one prepares for these things, so that an hour of broadcast is backed by masses of emails, notes and arrangements to allow a useful contribution to the discussion. I am quite conscientious about setting all this up, using anything up to four screens to give me all my references to hand plus paper as a backup, testing the lines, turning off anything noisy and so on – everything necessary to provide a calm and efficient environment.

About 30 minutes short of start-time, the broadband line-speed starts to drop. That’s not ideal, but OK, just use the internet for the pictures and do the talking over the phone. Then the whole lot falls silent – no internet, no land-lines, not even 3G iPad data over Vodafone, which leads me to conclude that Vodafone data is carried by Virgin for part of its route. I’m left with BlackBerry email and phone.

My wife phones Virgin; she knows that, however calm I am about most things, I generally end up screaming with incoherent rage at call centres, especially Virgin’s – at the time-wasting recording of some dim totty telling you all sorts of crap you don’t need to know, and the endless button-pushing and loops through multiple options before you end up with someone whose skill-set does not include either the comprehension or the speaking of anything resembling English.

Aggressive Transparency and Strategic Cooperation in Electronic Disclosure

Lieutenant Schrank: You hoodlums don’t own these streets. And I’ve had all the rough-house I can put up with around here. You want to kill each other? Kill each other, but you ain’t gonna do it on my beat. … So that means you’re gonna start makin’ nice with the PRs [Puerto Ricans] from now on. I said nice – GET IT! ‘Cause if you don’t, and I catch any of ya doing any more brawlin’ in my territory, I’m gonna personally beat the living crud out of each and every one of yas and see that you go to the can and rot there.

Riff: Now, protocality calls for a war council between us and the Sharks, to set the whole thing up. So I would personally give the bad news to Bernardo.
…..
Gee-Tar: Where you gonna find Bernardo?

Baby John: It ain’t safe to go into PR territory.

Riff: He’ll be at the dance tonight at the gym.

A-rab: Yeah, but the gym’s neutral territory.

Riff: A-rab. I’m gonna make nice with him! I’m only gonna challenge him.

You will recognise the lines from West Side Story. They are clearly a parable – Schrank is the judge and Riff is preparing for a case management conference with Bernardo, as protocality (otherwise known as the Practice Direction) requires. Can you “make nice” with your opponent and yet challenge him?

In my account of LegalTech, I mentioned a panel led by Laura Kibbe of Epiq Systems whose participants included the UK’s Senior Master Whitaker, US Magistrate Judge Andrew Peck and ediscovery specialist partner David Kessler from Fulbright and Jaworski. I said this of it:

An animated discussion arose during this session about the conflict between co-operation to minimise over-disclosure (on the one hand) and the risk of showing more of your hand than you intend (on the other) with the judges in one corner and the terrier litigator David Kessler of Fulbright & Jaworski in the other. The discussion deserves more space than I can give it here, and I will come back to this.

The principles at issue here apply equally in a US and a UK context. The UK 1999 Civil Procedure Rules were founded expressly on a “cards on the table” approach, and the co-operation duty is both implicit and expressed in the e-disclosure Practice Direction 31B. Rule 26 (f) of The US Federal Rules of Civil Procedure is its parallel. Many lawyers on both sides of the Atlantic find it counter-intuitive (read “treacherous”) to have any co-operative discussions at all. My favourite judicial quotation in this context is the one which says that “co-operation is not all sitting round the camp-fire singing Kumbaya”. Browning Marean of DLA Piper US captures the same spirit with two neat phrases “strategic cooperation” and “aggressive transparency”.

Although I look at this subject with a bias towards the UK rules in this post, much of what arises transcends jurisdictional differences. My premise is that we can only manage electronic disclosure proportionately (meaning, in this context, at a price the clients are willing and able to pay) if we require or persuade the lawyers to try and reach agreement on the scope of disclosure/discovery. Litigation is inherently a contentious process but we need, where possible, to separate the fighting over the facts and issues from the mechanics of disclosure. I include the words “where possible” because it has to be recognised that there are cases where the parties are never going to agree about anything and where the costs seem to them to be irrelevant. It is for the court to manage that, and to punish those who use the disclosure obligations as a weapon.

Risk, Processes, Proportionality and Objectives in Bribery and eDisclosure

This post is actually about a talk given jointly by me and Barry Vitou of Pinsent Masons and of thebriberyact.com to an audience invited by Iron Mountain in Westminster this week about the Bribery Act and developments in e-Disclosure. I came across a couple of diversions on the way which help illustrate some relevant words and terms which are in danger of losing their meaning – we all nod wisely when they come up but have lost any sense of what they mean in practice.

Barry’s subject and mine had various things in common, but both come down to having business processes in place to anticipate likely eventualities, to assess and manage risk, and to reach business objectives. You consider some external pressure, evaluate your exposure to it, understand its implications and the possible downsides, add up the costs of anticipating it, make an informed decision about it and set up a system to handle it. Or perhaps not.

Take hotels and their booking systems, for example. Risks range from accepting a booking and then denying all knowledge of the guest when he turns up to having him freeze to death in your room. Or, perhaps worse, not quite freezing to death and surviving to write about it afterwards.

One clearly-identifiable risk for me when I am due to speak early in the morning is that the trains will not run: the wrong kind of leaves on the line, the wrong kind of snow or, more probably, the wrong kind of management, all make it possible that this will be the day when you hear some variant on “We really can’t be arsed to run your service today” over the tannoy at Oxford station. I manage the risk by going up the night before and staying in an hotel.

Digital Reef, kCura and Foley & Lardner Webinar on 9 March

I do not catch all the webinar notices which fly by, and get to mention only a fraction of those. That implies no lack of support for the format or for those who put them on, but it is only Tuesday night and I have already this week been side-tracked by two major stories – the ‘Watson’ / Jeopardy! one and the spin-off from the NYT Expensive Lawyers / Cheaper software story – and given a talk in London which I will write up separately. The other major achievement was to miss the talk this evening by Mike Lynch of Autonomy which has been firmly in my diary for months – just not on the right day. I doubt very much that I entered it incorrectly, and I suspect it fell victim to my experiment, painful to set up but ultimately successful, to ensure that calendar and contact data entered in any of Outlook, Google, Blackberry, iCal or iPad all end up in each of those places. I wonder what else I have missed. I will find out in March 2012 perhaps.

There is no chance of your doing the same with the webinar to be given by Digital Reef, kCura and Foley & Lardner, because it happens tomorrow – probably today by the time you see this. Its title is A Playbook for the Fastest Way to Legal Review: Speeding Litigation Processing to Review and Production and it goes out on Wednesday, March 9, 2011 at 1:00 pm Eastern Standard Time which is 18.00 GMT. There is more information and registration here.

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King Ludd and the Lawyers – e-Discovery and the Luddite Fallacy

Since I am about to refer you to three weighty articles by others, I will keep my own comment to a minimum. The context is the ability of modern litigation software to analyse documents more quickly and more cheaply than lawyers can. This was the subject of my own recent article The relevance of a computer called ‘Watson’ and a television game show to electronic discovery, which sought to explain in non-technical terms what you can expect from modern litigation software applications. The articles to which I now refer you take the discussion one stage further – if software can perform some of the functions of lawyers, and do so quickly and cheaply, then what are the prospects for lawyers? If the first stage of user acceptance is that the lawyers should understand what the software does, then the next is to emphasise that this is a promise of better things, not a threat. The argument takes us back to the machine-breakers of the early 19th Century and the economic theory named for their putative leader, Ned Ludd.

The discussion was kicked off by an article in the New York Times on 4 March. Headed Armies of expensive lawyers, replaced by cheaper software, it covered much of the same ground as my article, including references to ‘Watson’ and Jeopardy! and the marshalling of large teams of lawyers. Where I referred to lawyers having “hangovers, lovers, debts and day-dreams to distract them”, the NYT article said “People get bored, people get headaches. Computers don’t”. The NYT author, John Markoff, and I are clearly barking up the same tree at least in the identification of the technology trends. We differ as to the outcome or, rather, I see survivors and beneficiaries where Markoff emphasises losers

The relevance of a computer called ‘Watson’ and a television game show to electronic disclosure

A computer with a homely name like ‘Watson’ and a US quiz show may sound like trivialisation of the serious subject of electronic discovery / eDisclosure. Equally, a reference to ‘Probabilistic Latent Semantic Indexing” sounds way over the top for a non-technical audience. What if we ally the speed of a computer with the sophistication of software algorithms to mimic human thought-processes? New skills are needed.

Let me make it clear right from the start that I do not understand the deeper technology behind Probabilistic LSI and that I nearly overlooked the many articles about IBM’s computer ‘Watson’. I got the message that ‘Watson’ had beaten the star contenders in a US television quiz game called ‘Jeopardy!’, and gathered also that many commentators at the geek and nerd end of the electronic discovery world were excited about it. What I missed was the experiment’s potential for explaining in lay terms what one might expect from the higher end of eDiscovery / eDisclosure applications. It was only when I caught sight of the name Recommind in one of the articles that I thought I had better read further.

Recommind is one of the sponsors of the eDisclosure Information Project, and I am familiar with the user interface which puts a friendly face on what are evidently extremely sophisticated functions. Recommind is not the only provider of intuitive front-ends to complex algorithms, and I pick on it mainly because it was the most familiar name in the first article I read about ‘Watson’. My purpose, however, is to use the Jeopardy! example to illustrate the searching power of some of the tools available to lawyers faced with a very large volumes of data. Most lawyers are familiar with keywords, because they use them every day in Google, and treat Google as a simple keyword matching tool – Google is in fact very much more sophisticated than that, but most of its users neither know nor care as long as they get an answer to their question in the first few hits.

eDiscovery obligations, however, require more than gathering the first few hits or even the first few thousand hits. They also require more than simple word matching, yet many lawyers reject (that is, do not even look at) such tools because of perceived reliance on a “black box”. The ‘Watson’ and Jeopardy! example gives us a good explanation in lay terms which may help break down these fears. (There are other fears, to do with the consequential potential loss of lawyer roles and jobs, which I will come on to in my next article).

Phlogging IQPC with Dominic Regan and ipadio

Let us deconstruct my title in stages, taking the easy bits first. IQPC is a well-known conference organiser whose Information Retention and E-Disclosure Summit is generally recognised as the best of the London conferences on information management and the use of electronic evidence. It takes place this year between 9 and 12 May. I have just recorded a podcast to promote its benefits, which is what the less familiar words in my heading are about.

IQPC’s Day 1 deals broadly with the information management side, kicking off with a session on US and European regulatory investigations and prosecutions with speakers including Vivian Robinson QC, General Counsel to the Serious Fraud Office, whose talk on the Bribery Act at IQPC in Munich alerted me to the crossover between the Bribery Act defence of “adequate procedures”, and broader information management principles. Another star turn is Damon Greer, Director, US-EU and Swiss Safe Harbor Frameworks at the US Department of Commerce. Day 2 brings us, amongst other things, the US-UK Judicial Panel which serves as an annual stimulus to conjoined Anglo-American thought on the court’s role in managing electronic documents.

I am not going to give you a list of the many thought-leaders from companies, law firms and suppliers because it would simply repeat what you can read in the programme. Take it from me that you will not find a better assembly at any other conference, and book your place while you can. I turn up in the programme from time to time, generally in my preferred role as introducer or moderator.

UK Government abandons Henry VIII powers to by-pass Parliament

The UK government is abandoning its attempt to give itself new powers to act without parliamentary scrutiny. That is interesting in itself, but also encourages observations on the rise of informed blogging on legal matters in opinion-forming.

My January article Judges defend our long-term liberties from short term politicians included a section on the so-called Henry VIII powers by which the government can bypass Parliament, pointing back to the Statute of Proclamations of 1539 which is the source of the pejorative nickname given to the proposed powers. Given New Labour’s contempt for Parliament, it was unsurprising that they should have had a go at introducing such powers. It was disappointing to find that the coalition government was holding out for them in the Public Bodies Bill.

An article by barrister Adam Wagner called Henry VIII powers to be dropped on the UK Human Rights Blog reports that the government has given way on this. Two points arise, in addition to the obviously welcome news that we are not going back to 16th century despotism even as we condemn other nations for their lack of democracy.

The Bribery Act and e-Disclosure – Iron Mountain breakfast seminar on 8 March

Registration is now open for the Iron Mountain Breakfast Seminar on Electronic Disclosure and the new UK Bribery Act which takes place on Tuesday 8 March at 8.30am at Altitude 360, Millbank Tower, London. The registration form is here.

The Bribery Act part is given by Barry Vitou of Pinsent Masons and thebriberyact.com and is called What every business needs to know about the new UK Bribery Law. The precise details continue to be the subject of speculation as the government reconsiders both the act itself and the guidance notes which are to accompany it. It seems unlikely that there will be changes of any substance to the act, but the guidance notes are rumoured to have had a major overhaul.

thebriberyact.com is a constantly updated source of information about this. You might also like to read an article in the Telegraph headed Government relaxes Bribery Act which, however authoritative its alleged source, much be treated as speculative until the government finally goes to press. Much of the concern about the act has focused on corporate hospitality with fears – exaggerated fears, I think – that the SFO will be touching the collars of anyone who gives or accepts routine entertainment in relevant circumstances. The most extreme example of irrational fears to have come to attention is a bowls club which has forbidden gratuities to a groundsman with the implication, presumably, that the grass will be rolled and cut in a particularly favourable way for those who hand out the biggest tips. Common sense is needed here, and Barry Vitou is the man to give it – see, for example, the Q&A here, which covers hospitality, and the report of an interview with SFO Director Richard Alderman headed Prosecuting overseas corporates will be a top priority for the SFO. My own article of a few days ago includes links to some other articles which you may care to read. I also recommend an article by Neil Cameron called Ruminations: The Bribery Act 2011 and Legal IT: Let’s Lunch! which pours the cold water of reality on the flames of irrational fear.

AccessData conference carries electronic discovery message to Germany

I am very much looking forward to moderating an electronic discovery conference in Frankfurt on 22 March. The hosts are AccessData and the speakers are drawn from a broad range of legal, technical and compliance backgrounds, and from well-known firms and companies such as the Luther Law Firm, Siemens AG, DRSDigital, Allen & Overy and Alvarez & Marsal. The programme is here.

Between them, these speakers will cover the growing importance of ediscovery in Germany, forensic services from the viewpoint both of those who collect and manage data and of those who advise on it, and matters of compliance and due diligence. Brian Karney, President and COO of AccessData, rounds the conference off with a session called Getting the Job Done: the Technology. My role is to open the show with a welcome and introduction, to keep us to time (no small challenge with this number of speakers crammed into one afternoon) and to lead the closing panel.

The number of corporate counsel at IQPCs ediscovery conference in Munich last year showed what an appetite there is for discussion about ediscovery in Germany. This is hardly surprising: Germany has the fifth largest economy in the world and the largest in Europe, with a 3.3% rise in GDP in 2010 following an earlier fall. Its exports in 2010 are estimated at $1.337 trillion; 6.7% of this went to the US, which also provided 5.9% of its imports.

That volume of trade with the US, quite apart from US investment interests, inevitably brings US-related litigation, regulatory and compliance implications. Germany’s position in the EU brings growing activity of the same kind, both from Brussels and of domestic origin. The last two years have seen Germany as one of the leading (perhaps the leading) player in the development of data protection and privacy activity. Like other civil countries of mainland Europe, Germany has no discovery tradition such as is found in the US, the UK and other common law countries.

There is, therefore, much to learn in a short time. Anecdotally at least, there seems to be recognition of this, at least amongst the bigger German companies and I anticipate a good turnout for an event as broadly structured as this one and with a cast of this calibre.

The venue is the Schlosshotel Kronberg outside Frankfurt. Who could not warm to an establishment which describes itself as Very Britisch and talks of Tradition, Hightea-Kultur und Schlossatmosphäre (Tradition, high-tea culture and castle atmosphere) which, it says “are inevitably associated with Great Britain”. Quite so. The conference finishes with a dinner at which I suspect the day’s discussions will continue.
There are places left for this event. The AccessData contact details are on the programme.