The SFO’s loss is McGuireWoods gain as Vivian Robinson resigns

April 30, 2011

The UK’s Serious Fraud Office, already beleaguered as the government tries to make up its mind about its fate, has now lost its General Counsel. The widely respected Vivian Robinson QC is said to be going to McGuireWoods, leaving the SFO in the summer.

Vivian Robinson QCIt was hearing Viv Robinson speak, at IQPCs Munich conference last December, that got me interested in the Bribery Act. My focus is not so much on the possible prosecutions as on the additional, and very pointed, pressure which the Bribery Act puts on companies to pay attention to information management as one of several aspects of risk management and compliance deserving new attention. The specific point lies in the corporate offence of failing to prevent bribery, and its defence that the company had “adequate procedures” in place to anticipate and prevent bribery. This has many facets, but one of them parallels the view given by His Honour Judge Simon Brown QC in Earles v Barclays Bank to the effect that “potential litigants … need to anticipate having to give disclosure of specifically relevant electronic documentation and [have] the means of doing so efficiently and effectively”.

An article on, run by Barry Vitou of Pinsent Masons and Richard Kovalevsky QC, reporting Viv Robinson’s departure, draws attention to the uncertainty already surrounding the SFO’s future. As with so many other things, the government’s enthusiasm for decisiveness seems to pre-empt the application of any real thought – that is how we come to decommission the Ark Royal – the perfect floating hotel-cum-airfield – just as we incur four years’ worth of its running costs in accommodation bills for the forces engaged in Libya. article gives some observations on the position of the SFO as Vivian Robinson prepares to leave. It links in turn to a thoughtful article in The Lawyer which gives a good summary of the political context and the implications of the decisions (or lack of them) which affect those interested in bribery, corruption and fraud.


Judge Grimm on ignorance of ediscovery rules and lack of consistency from courts

April 28, 2011

A high proportion of e-disclosure / ediscovery disputes in both US and UK courts arise because one or both of the parties does not know what target it is supposed to reach. This generally stems from one of two causes — they do not know the rules and they do not know what they might expect from the court in an area in which judicial discretion plays a large role.

The rules point seems pretty obvious to you and me although not, apparently, to the many lawyers on both sides of the Atlantic who fall foul of the rules each year and who do not know the cases. The consistency point is more subtle but just as significant. A solicitor once told me of a case where he and his opponents had argued (presumably expensively) for weeks before going to the court for directions. The answer came quickly and was not precisely what either of them wanted, but it cut through the argument and allowed them to get on. “If only we had known what to expect” they said, making the point that the argument could have been avoided if they had had some idea of the kind of orders available from the court. Consistency is, in a sense, antithetical to discretion, but we do need to be able to anticipate what kind of orders we might get.

These two factors, knowledge of the rules and consistency from the courts, are identified by chief US Magistrate Judge Paul Grimm in an article in the University of Richmond’s Journal of Law and Technology (JOLT). His immediate context is the two-year old Federal Rules of Evidence 502 which aimed to encourage lawyers to co-operate to reduce the costs of production of electronically stored information.

This article reached me via a posting by Monica Bay on the revived EDD Update and I refer you to that rather than directly to the JOLT article so that you get the benefit of Monica’s commentary on the way.


Clear and convincing evidence needed to show contempt in intimate pictures case

April 28, 2011

I am writing my annual play for US and UK judges to perform at IQPC in London. The purpose each year is to sweeten the pill of e-disclosure didacticism with some light humour. If I always cast the US judges as the good guys delivering pearls of wisdom from the bench, that is because we are good hosts and polite to our guests, not a judgment on the relative merits of the two systems.

Last year, the play virtually wrote itself – we had had a run of UK cases, some of which defied parody and required no embellishment to raise a laugh. The only case of note in the last twelve months has been Rybak v Langbar where the claimant’s case was struck out because file deletion software was used between the date of the order for delivery of his computers and the actual delivery. In a painstaking judgment, the judge concluded that the claimant had deliberately destroyed data and that “it must have been judged by him to be adverse to his case and potentially beneficial to Langbar’s case”. He would not permit claimants to “ask for a judicial determination on the evidence that they have chosen to put before the court, without the evidence that they have chosen to deny the other party and the court”.

I wrote about the case here and subsequently picked up on an article by Craig Ball called Double Delete Doesn’t Do It.

The setup for a scene in the play about these issues involves comparison between US courts, where heavy sanctions for destruction of data are common, and those in the UK where they are rare. The Rybak case in fact says little about the general duty of preservation and disclosure because it involved the breach of an “unless” order. The factual findings (as to the use of the file-erasing application and as to the intent) showed a breach of the order, making it unnecessary to reach a conclusion as to pure disclosure principles. Read the rest of this entry »

ALRC Update on the Australian Discovery Inquiry

April 20, 2011

Patrick Collins, Senior Legal Officer of the Australian Law Reform Commission, made a presentation at an ediscovery conference in Melbourne last week. I don’t miss many common law ediscovery conferences, but I was not at this one, and I am obliged to Geoffrey Lambert of for pointing me to a summary of Patrick Collins’ presentation.

I noted in a recent post about a Singapore case that those of us concerned with the development of eDisclosure / eDiscovery rules watch closely what is happening in other jurisdictions. Some of us who were involved in the new UK e-Disclosure Practice Direction 31BSenior Master Whitaker, Vince Neicho of Allen & Overy and me – were pleased to be invited to give some input into the consultation phase of the Australian Discovery Report, and will be equally pleased, in due course, to see what recommendations emerge and find favour – it all helps inform our next round of discussions.

I see, incidentally, that our Ministry of Justice has a pretty new web site, and has redirected existing urls to an archived copy. I am sure that makes sense for them, but those of us with links into the site will have to change them all. Since I make a point of linking to the rules and the PD every time I refer to them, that is somewhat tiresome.


Epiq joins the NLJ for a roundtable discussion on costs and case management

April 20, 2011

The New Law journal is running a series of roundtable discussions on various aspects of litigation and dispute resolution. I have my eye on the events in this series because I am due to take part in one shortly. Quite apart from the quality of the participants, the NLJ produces attractive, readable reports of what was said.

A recent one addressed the subject of costs and case management (see NLJ Roundtable Costs and Costs Management). The significance of e-disclosure as part of this subject was evidenced by the presence of Greg Wildisen, International Managing Director of Epiq Systems, who has shown a consistent interest in the context of rules, procedure and costs as well as in the technology and services which Epiq provides.

Also present was Andy Ellis of costs specialists Ellis Grant. I feel that I knew him quite well although we have never actually met – we follow each other on Twitter and his office is at the opposite end of the High Street from my late father’s office in Wanstead where I started my articles of clerkship several decades ago.

Others present included solicitor David Green of Edwin Coe, Mark Hill QC of Pump Court Chambers and Jeremy Hill of LexisNexis

E-disclosure seems to have dominated the discussion. The panel focused on two aspects of particular importance. One is encapsulated in the comment by Mark Hill: “Save for a few judicial techno-nerds, nobody has the slightest idea what e-disclosure is all about. The early warnings have been largely ignored”. [My original report on this merely passed this quotation on without comment. I meant to add my view that the sentence about "a few judicial techno-nerds" both under-estimates the number of judges who know very well that electronic documents must be dealt with properly, and perpetuates the false idea that a deep knowledge of technology is required to manage them. Judges need only to have a broad idea of the technology solutions and to require parties to show that they have examined the costs and other implications of using them].

The other point will be familiar, if only because by chance, I dictated a reference to it a few minutes ago in my report of a Singapore judgment. The sentence which catches my eye is “For litigators there is a natural propensity to leave “no stone unturned” when engaging in discovery and it is this mindset that the panel agreed needed challenging.”. Paragraph 46 of Digicel v Cable & Wireless and its cross-reference to paragraphs 44-52 of Nichia v Argos deserve this exposure.

There was discussion about keyword searches and other, more sophisticated, search techniques, and about the costs management trial being piloted in the Birmingham which is covered in a panel on page v of the report. The advantage of assembling a cross-disciplinary panel like this is that all these inter-related subjects come up at once – you cannot sensibly discuss technology without also bringing in the management of costs and the broad subject of lawyer and judge education.


Audio Search and Geolocation from ZyLAB

April 20, 2011

Two new developments from ZyLAB are worth passing on. In contrast to some players in this market, ZyLAB produces press releases which are short and to the point, without the boilerplate wrappers so beloved of others which set you nodding off before you reach the bit which counts. I will leave you to read them for yourself.

One is the ZyLAB Audio Search Bundle which allows quick identification of relevant sound clips from multimedia, fixed line telephones and VoIP. The aim is to make audio collection as easy to find, review and analyse as other forms of electronic data.

The other involves the capture of geolocation data from those devices which use it, either for simple research in its own right or to match it with other data (e.g. the text from e-mails) in order to analyse all the sources together, perhaps to compare with witness evidence. The results can be plotted on Google maps.

I wrote only a couple of days ago about how FTI Technology can cross-match statistical and financial information against textual data. This is a parallel concept. In both cases the separate sources of data are useful in their own right but become infinitely more valuable, potentially saving months of manual cross-checking, when combined in this way.


Singapore case – Specific Discovery – Sanae Achar v Sci-Gen Ltd

April 20, 2011

A new case from the Singapore High Court involves an appeal against an order for specific discovery of documents. The case is Sanae Achar v Sci-Gen Ltd
[2011] SGHC 87  The appellant lost and was ordered to disclose more or less what had been demanded. She was ordered to pay costs fixed at $1500.

For now, I will leave you to read it without much commentary from me – my focus at the moment is on conference preparations and interesting and important distractions turn up every time I turn back to what I am really supposed to be doing. In reading it you will note that the rules are very close to their equivalents under the CPR of England & Wales. This was no accident; apart from our shared common law tradition, the Singapore courts watch closely what happens in other jurisdictions and are shrewd to adopt, at a steady pace, those procedural measures which seem to work elsewhere. We do the same, which is why judgments like this are of interest. They have sensibly stuck with the word “discovery” and (a point of sentiment to those of us of a certain age), the discovery rules appear in Order 24, as ours used to.

I will draw attention to one point dear to my heart. The judgment ends with a reference to the passage at paragraph 46 of Digicel v Cable & Wireless in which Morgan J adopted Jacob LJ’s point in Nichia v Argos about unturned stones and smoking guns (see paragraphs 44-52 of Nichia). As quoted in the Singapore judgment it reads:

[T]he [discovery] rules do not require that no stone should be left unturned. This may mean that a relevant document, even “a smoking gun” is not found. This attitude is justified by considerations of proportionality

I quote this in almost every talk I give, and see it as the single most important paragraph in any judgment about disclosure.

My thanks to Senior Assistant Registrar Yeong Zee Kin of the Singapore High Court for drawing my attention to this judgment to which, as I say, I will revert in due course.


You do not need the fear of sanctions to get value from legal hold software

April 19, 2011

I am doing a panel session on Day 2 of the IQPC Information Retention and EDisclosure Managemement Summit with Ronke Ekwensi of Pfizer. Our subject is ESI preparation and preservation: Assessing – and addressing – your eDisclosure Liabilities. One of the aims is to cover the differences between the US and the UK approaches to preservation and to legal hold and I have been putting some slides together. It seems worth giving it a preliminary canter here.

Clearwell is the latest US ediscovery software company to produce a legal hold module, the logical extension to the existing components of its EDiscovery Platform. This is becoming a standard component of ediscovery applications – Guidance Software was, I think, the first to integrate such a module over two years ago.

A US lawyer needs no explanation of the importance of legal hold. It formalises the duty to preserve documents and records that an organisation “knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation”. This quotation comes from Mosaid v Samsung of 2004 and remains a good base definition although a lot of water has flowed under the bridge since then. Critics complain of the use of the word “reasonably” in qualifying both the expected state of knowledge and the degree of foreseeability, but none has come up with an alternative way of defining the trigger for preservation (though serious attempts are being made to improve on this).

The formal trigger in England & Wales is the issue of proceedings. Destruction before issue brings penalties only in limited circumstances involving an objective to interfere with future litigation and a positive act as opposed to an omission; further, the documents must be relevant ones, that is, ones which might have made a difference. The key issue is whether a fair trial is possible despite the destruction of the documents. Taking all this together, it is quite hard to attack another party for alleged spoliation before the commencement of proceedings. That said, the parties and their lawyers may have to explain what became of “missing” documents and to justify their destruction.

There are differences between the scope of US discovery and UK disclosure. “Relevance” in the US includes information which is reasonably calculated to lead to the discovery of admissible evidence, where the post-1999 UK definition is the potentially much narrower test whether documents are supportive of or adverse to the case of the giver or of any other party. Read the rest of this entry »

LDM Global survey on common ediscovery errors and a new office in New York

April 19, 2011

LDM Global recently conducted a survey across the USA, Europe and Australia to find out what were seen as the most widespread ediscovery errors. Whilst the results will surprise no one, it is good to be reminded that the problems generally arise from relatively straightforward human failings. Top of the list were:

  • Failure to communicate across teams involved in the eDiscovery process
  • Inadequate and/or poorly implemented data retention policies
  • Failure to perform sufficient quality control

You can read LDM Global’s report here where you will also find a link to the full results of the survey.

LDM Global has also just announced the opening of a new office in Midtown Manhattan and a significant expansion of its presence and its staff in New York and the US East Coast.

The staff include Mike Petriella as Head of US Business Development and the transfer of Nathan Hughes who joins the New York sales team after five years with LDM Global in London. I thought Nathan looked more than usually content with life when I saw him in New York at LegalTech, and now I know why.

Although LDM Global has 7 international offices (and was established 15 years ago by the Australian O’Reilly brothers Greg and Chris) I always think of it as London-based because that is where I had my connection for most of those 15 years, and I get some pleasure from seeing its expansion “abroad”. It can only help the company’s trans-Atlantic business to have in Manhattan someone who has served time in London.


Three webinars from Digital Reef

April 19, 2011

Digital Reef WebinarsDigital Reef, whose ediscovery, early case assessment and compliance software has recently brought them into the KMWorld List of 100 Companies that Matter in Knowledge Management, is producing three webinars over the next few weeks.

These are as follows:

Burst Capacity: the underbelly of the ediscovery beast on 27 April

Balancing in-house and outsourced ediscovery resources on 12 May

SaaS-based ediscovery, effective practices — lessons learned on 20 May

The registration pages for these events can be found on Digital Reef’s home page.

I had lunch in Oxford recently with Charles Lavallée, Digital Reef’s Director, Business Development – US & International, whom I have known since long before his move to Digital Reef. The plan was to show him round Oxford (these visits are the only way I get to see my own home city, so I appreciate them for that reason, as well as for the information I glean whilst doing it), but he had to go back to London earlier than expected. He will be back for the IQPC Information Retention and EDisclosure Summit in London from 9-12 May where Digital Reef is amongst the many exhibitors.


Recommind Webinar – UK Bribery Act: Much Ado About Nothing, Or Game-Changer?

April 19, 2011

Recommind are presenting a webinar in conjunction with Inside Counsel on Thursday 21 April (that’s this week). The title is The UK Bribery Act: Much Ado About Nothing, Or Game-Changer? and registration is here.

The speakers are Mark Mendelsohn, Partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP and Howard Sklar, Senior Counsel at Recommind. Readers with long memories (see Twitter, bribery and 37 corporate counsel in a big virtual bar) may recall that I came across Howard Sklar when one of his articles was retweeted, and had started following him on Twitter (he is @HowardMSklar) before realising that he is at Recommind. Many good articles on the Bribery Act have appeared on his Open Air blog since then, including a series of critiques of the Guidance Notes. Tom Fox said this on his FCPA Compliance and Ethics blog:

How can one best describe Howard Sklar’s blogging; withering, skewering, contrarian; he describes himself as “a crusty, irascible curmudgeon.” Here’s how I would describe Howard – one of the best compliance practitioners and commentators around. His insights are great and he uses the right touch of humor and real-world examples to get his point across. His blog is great and a ton of fun to read so saddle up and enjoy the (compliance) ride.

A community of bloggers and tweeters has quickly grown up around the the Bribery Act – you will find your way in by using Tom Fox’s list linked to above. The participants do not always agree with other and don’t hesitate to say so, which is what gives the articles, and the accompanying Twitter banter, their edge.

I confess to doubts that Howard is quite the “crusty, irascible curmudgeon” he claims to be – I have only met him once and then only briefly, and found him no more curmudgeonly than I am (oh, all right – perhaps it is an occupational hazard). If his webinar is as thought-provoking as his writing, then it will be well worth listening to.


Epiq’s acquisition of Encore gives the customer more choices

April 18, 2011

E-Discovery services and technology company Epiq Systems, Inc. has acquired Encore Discovery Solutions for $100 million cash. The press release is here. Most market comment has focused on the acquisition price and on the estimated 50% increase in the revenue of Epiq’s ediscovery business on top of the 92% achieved by its organic growth in 2010. The customers of both companies will be more interested in the range of options and in the increased depth which the acquisition brings.

A glance at Encore’s website shows clearly why Epiq see this as a good fit for them. Encore offers the full range of ediscovery services from data acquisition and analytics through to hosting, production and document review, and it is no accident that project management sits at the centre of the diagram on the Services page of the website. What caught my eye was the range of Strategic Alliance partners which Encore has, with the logos of Relativity, Equivio, Content Analyst, Clearwell, IPRO, EnCase, ICONECT, Wave and Concordance on display.

This was what I focused on when I spoke to Christopher Olofson, President and COO of Epiq Systems, Inc, and to International Managing Director Greg Wildisen, getting from them the sensible line “The customer does not get upset by having more choices”. Greg Wildisen emphasised that Epiq has always been a “services company with software” notwithstanding the fact that it is well known for its proprietary review platform DocuMatrix and its evidence processing engine eDataMatrix. Epiq’s own document review service is product-neutral, set up to generate output for the customer’s choice of destination. Full development of DocuMatrix is to continue.

There is almost no overlap between the customer-base of the two companies, and joining forces allows them to consider each matter and to make appropriate recommendations based on skill, complexity and budget. Encore’s customers will get access to Epiq’s service capacity, its international reach, its data centres and its fast-growing document review services. Epiq’s existing role as primarily a consulting and services business is reinforced by the range of options which the Encore acquisition brings it.

Most predictions for 2011 and onwards have anticipated consolidation in the market. Whilst I cannot say that I saw this one coming, Epiq’s organic growth in the last year made it a likely buyer of something appropriate to add to its capacity and its offering to customers. The complementary skills of the two companies suggest that one plus one is likely to yield very much more than two.


Clearwell, ICE, FOIA and NDLON

April 18, 2011

If the jumble of names and initials in my heading means nothing to you then move along to the next article, because this one assumes that you know about it. If you do know about it, then I do not need to recite the curious story of the disappearing blog post and the subsequent retraction and apology. I watched the flow of critical comment which followed, all of which reinforced my initial reaction, which was to sit it out and await developments before joining in. I like to know how deep the water is before I wade into it.

I have seen enough of these stories to know that they have a reasonably predictable arc. For one thing, they never emerge in relation to unsuccessful companies; what gives them legs is the fear of competition, and no one bothers to attack the weak. For another, the rebuttals come in slowly, unlike in politics where much unhelpful heat is engendered by the frenetic need to get the counter-attack in at once. The critics are hampered by a lack of facts, the defenders by client confidentiality.  It is all part of the knock-about of competition, of course, and most of the players give as good as they get. Occasionally, the challenge of doing an elegant stiletto job on a rival can result in new ways of describing the benefits of one’s own product. The comments never seem to make the slightest difference to the market share of any of the players, however, inducing merely a “plague on all your houses” reaction from a generally mature audience whose buying decisions are made on much deeper grounds.

Twitter brings you every twist and turn as they happen. The trick is to filter the fact from the assertion, the partisan from the objective. The next development of substance (of apparent substance anyway) was the publication of the so-called Pavlik-Keenan Declaration which, as a formal court document declared “under penalty of perjury”, brought expectations of factual accuracy at the least. The fact that the relevant part of its story seemed inherently implausible did not put me in a position to argue with it. The comment around it was relatively muted, which suggested to me that others too were unsure how far the story would run.

Last week brought the expected article by Aaref Hilaly, CEO of Clearwell, headed Clearwell, NDLON v ICE, and the Pavlik Keenan declaration which, for the first time, allowed me to see both sides of the story (my degree subject was history, don’t forget, so I am predisposed to look for balance and the occasional solid fact). That referred to another court document, the declaration of Ryan Law which corrects those parts of the Pavlik-Keenan Declaration which struck me as implausible when I first saw it, and sets out some points which had been ignored in most of the earlier chatter.

I do not have to take sides, draw conclusions or make decisions. There is more to come on this one and, as I have suggested, a few hard facts are an indispensible component in any story. It was obviously necessary for me at least to mention it all at some point, but you will note that I have got to the end of my article without saying anything about the case itself. That is the trouble with these inter-provider spats – they take all our eyes off what really matters.


Filling the day and nearly getting filled with lead

April 17, 2011

One of the influential figures in US ediscovery gets very cross at references to the “ediscovery market”, as if the commercial connotations somehow sully the purity of the context of rules and judges and justice which the ediscovery / e-disclosure industry supports. I am pretty keen myself on the “pure” side of it, and more widely than my ediscovery remit, which is why civil liberties and the relationship between rulers and ruled turn up in these pages from time to time.

The “market” side of it, however, is both integral to the delivery of justice and interesting in its own right, both in the delivery of legal services and in the technology which is my own particular concern. What I do touches on several different aspects – business processes, technology, the law itself, and marketing. Periodically, I am asked: “What exactly do you do?”. One of my children, when asked this question recently, said “He writes a blog”, presumably leaving the questioner little the wiser. What I do is, of course, of interest to others only to the extent that it throws light on the market. If I describe my day in London on Thursday, as I am about to do, it is because it touched a lot of industry corners, and not because my own diary is likely to enthrall anyone for its own sake. It nearly included a rather closer interaction between rulers and ruled than I generally look for. Read the rest of this entry »

A Craig Ball anti-forensics article reminds UK readers of Rybak v Langbar

April 11, 2011

Thousands of words are written each week about e-disclosure / ediscovery. That old joke about today’s article is being tomorrow’s cat litter is hard to apply literally to electronic publication, but it is right to say that few of the many articles are read much after the month in which they were published. Many of those which do survive seem to be written by US forensic expert Craig Ball.

I predict a long life for his article Double Delete Doesn’t Do It published on Law Technology News on 1 April. I have deliberately included a reference to the UK case Rybak v Langbar in my title to emphasise that Craig’s article is as relevant in the UK as it is in the US – this is not true of all US articles, many of which depend on the peculiarities (I use the word in its widest sense, connoting distinctiveness rather than oddness) of US e-discovery.

One of my themes for 2011 is “What actually happens to your data”, reflecting my perception that many of the terms of art used in ediscovery / e-disclosure pass over their heads of those who need to understand what is actually involved. It is hard to avoid this in conventional marketing materials which must necessarily be punchy and succinct. Shades of meaning get lost by this abbreviation; whole subjects embracing a wide range of concepts get reduced to a single word or snappy expression. “Processing” is one example; “forensic collection” is another.

The broader sense of the term “forensic collection” implies that data is collected in a form which exactly matches the original. Whole servers, laptops and a range of other devices, including perhaps empty or slack space (don’t ask, not just now anyway), are copied to preserve the contents as they stood at the date of collection. The term equally applies to the collection of sub-sets, such as particular folders or the documents of particular custodians; it can apply to the examination of a single document. Forensics, though, goes further than mere collection and can include analysis and deduction – the adoption of the word “forensic” in computing science should not obscure its original meaning which, in my (pre-computer) dictionary is “of, used in, courts of law”. You may engage a forensics expert simply to ensure that data has been collected in a sensible manner; you may need him in a role more akin to that of a detective.

Craig Ball’s article describes the latter situation. He was engaged to examine the computers of a party to litigation pursuant to a court order as an independent expert. Part of that task involved technical tools and technical knowledge. Part of it simply involved informed observation – it is near-impossible anyway to conceal the use of disk-cleaning software like CCleaner, but leaving its icon on the desktop is a bit of a giveaway, like the bank robber who wrote his demand on the back of his own utility bill or the one who had his name stencilled in large letters on the motorcycle helmet used to hide his face. Read the rest of this entry »

LDM Global seminar: The Bribery Act – an International Perspective

April 11, 2011

I moderated a panel last week at the invitation of LDM Global with the title The UK Bribery Act – an international perspective: how the act will apply to foreign organisations, operations and activities.

The panelists were Rose Parlane, senior associate at McGuireWoods, and Don Macfarlane, Head of Global Operations and General Counsel for LDM Global. Rose is a member of McGuireWoods’ anti-corruption group, much involved recently in briefing her clients on the Bribery Act, on how best to prepare for it and why it is important to do so. Don’s career has focused on international law, cross-border litigation, cost management and proportionality, and has worked as an in-house lawyer at BP as well as at large law firms.

I opened by drawing attention to the divisions of opinion provoked by the Bribery Act: some said it hampered competition whilst others claimed it was too weak for its purpose; the required degree of connection with the UK has been condemned as imprecise and as unfair to truly UK companies; the act is too broad or too narrow, too specific or too vague, depending on who is speaking. Given the very wide range of companies and activities, the spread of opinion perhaps indicated that we had got it about right, although it would have been nice if the government, the SFO and the courts were singing from the same hymn sheet as to enforcement. There was no point, however, in arguing with what the legislation said – we are where we are and must focus on what to do about it.

Rose Parlane gave us a brief overview of the act and its key provisions, and took us through the Guidance. The wording of the act has not been watered down and it is to the legislation that the courts will look first. The froth of comment about facilitation payments and entertainment had obscured the need for a careful risk-based approach which designed an “adequate” compliance program appropriate to the size of the company, its risk profile and its existing processes and systems. It was not necessarily a bad thing that companies needed to know about the people and entities with which they dealt.

Joint ventures, she said, remained a source of exposure. The trickle-down effect of compliance requirements imposed by contracting parties would, in many cases, be a more serious pressure than any realistic fear of prosecution. It was likely that we would see civil actions based on compliance failures. Read the rest of this entry »

ZyLAB and the UK Bribery Act – Controlling the Impact on the Organisation

April 11, 2011

I was one of the speakers at a breakfast seminar last week with the title the UK Bribery Act – Controlling the Impact on the Organisation.The event was organised by ZyLAB whose products are designed, across the various modules, to manage information and compliance within an organisation, and to enable the extraction and disclosure of information when litigation, a regulatory or internal investigation or, as in our immediate context, a Bribery Act implication, affects a company.

The venue was Middle Temple Hall which, I am ashamed to say, I had not entered in the 32 years since I first worked in the area. Building began in 1562; Sir Francis Drake dined there in 1586, having recently returned from the New World with the surviving colonists of Roanoke in what is now North Carolina; the first performance of Shakespeare’s Twelfth Night was put on there at Candlemas in 1602. Middle Temple Hall was severely damaged by bombing in a 1941 bombing raid, though coming off better than the buildings which had surrounded it. It is worth going in just to see the photographs of the aftermath of the Blitz.

The event itself took place in two panelled rooms behind the Hall itself, one for refreshments and one laid out as a lecture hall, both overlooking the gardens running down to the Thames. It is quite a challenge to keep the attention of an audience which can look past you onto such a view, and to keep them awake when, as on that day, the sun was streaming in through the windows. I think we managed. Read the rest of this entry »

Huron Consulting, LDM Global, Hobs Legal Docs and Recommind all move home

April 11, 2011

In case you are setting off for a meeting in London with Huron Consulting Group, LDM Global or Hobs Legal Docs, you may care to note they have all moved premises in recent weeks. Recommind has also moved, though I think I am late in catching this piece of information.

Nigel Murray and his team have moved from Trilantic’s former offices to Huron Consulting Group offices in the verdant pastures of the West End. Nigel is keen to point out that they are only twelve minutes from Bank Station in their new offices at One Connaught Place, London W2 2ET. The telephone number is still +44 (0) 207 042 1000 and the new web site address is

After many years in Great Eastern Street, LDM Global has moved south and taken larger premises at 11 – 21 Paul Street, London EC2A 4JU. The new telephone number is +44 (0)203 463 8444. The web site address remains

Hobs Legal Docs has also outgrown its old home and can now be found at 58 Farringdon Road, London EC1R 3BP. The telephone number is +44 3217 0300 and the web site address is still

I seem to have missed the announcement that Recommind was moving its offices – I knew it was happening to cope with Recommind’s significant expansion recently, but missed the moment. The new address is 6 Snow Hill, London EC1A 2AY. The telephone number is +44 0207 002 7735 and the web site is

This sort of information is vital for those who, like me, use the iPad map feature. That allows you to enter the name of the person or company to be visited and see immediately where they are on a map and how to get there from your present location or elsewhere. Tell it that you are going, say, from LDM Global to Huron Consulting and, if both addresses are in the iPad’s address book, it will show you the route. All we need, really, is that when people in our address books move offices, the updates are pushed at us automatically. Think how much time that would save us in a year in an industry in which people move from company to company, or when, as here, whole businesses move together with several of your contacts. I can think of better occupations on a sunny Sunday than updating addresses and, in the case of those whose email addresses have changed, the Outlook rules which apply to them.


ILTA Insight 2011 in London

April 8, 2011

You may have noticed some recent diversification in the subjects which I cover. I have moderated a couple of US panels on law firm technology generally, written and spoken on the use of social media, and covered the Bribery Act. The latter has an obvious crossover into e-disclosure / ediscovery (one of my talks this week, for example, was entitled “UK Bribery Act adequate procedures: kicking information management up the agenda”); the others I do mainly because any pure e-disclosure talk or article will necessarily reach only those who are at least partially converted already, and these extra-curricular activities take me (and therefore my main subject) to new audiences. I enjoy doing them, but have no ambitions to challenge the pre-eminence of Charles Christian or Joanna Goodman in covering the broader field.

ILTA is the International Legal Technology Association, whose role (in its own words) is “sharing knowledge and experience of those faced with challenges in their firms and legal departments”. Its main annual event, this year from 21 to 25 August in Nashville, is an unbeatable opportunity to mix with people who share the same challenges as well as with those who offer solutions across the full range of legal technology including, but not limited to, the e-discovery/e-disclosure topic which is my primary interest. It would be good to see some more UK lawyers there this year.

ILTA runs a one day conference in London each year called ILTA Insight. It had no pure litigation content this year, but a wide range of other topics were covered on the agenda and it was, as always, attended by a diverse set of law firms. I imagine that Charles Christian’s Orange Rag will produce a proper report in due course, and I will content myself with three snippets picked up from the sessions which I attended: Read the rest of this entry »

A new iPad WordPress App to foul up your blog

April 7, 2011

A Twitter direct message received this morning from Scott Gillard of Minter Ellison in Australia read:

Love the new iPad version of your blog. Nice job.

I did not know that there was a new iPad version of my blog and hastened to look. There is no new App (not, at least, one commissioned by me), but opening the blog in iPad’s browser gave me not my usual header but a full screen version of the photograph from my penultimate post with the words “e-Disclosure Information Project” superimposed on it.

There were a number of things wrong with this from my perspective. For a start, the photograph was of Indiana Jones and a cobra which, although relevant to the post in which I had placed it, is not necessarily the introduction I want to the blog generally (I don’t mind being mistaken for Harrison Ford, but would not want to be confused with the cobra). It did not help that the photograph had been expanded to fill the screen and was distorted. Swiping that aside, I found an exciting new layout for the headers for the last few posts. I should make it clear that “exciting” is not a compliment in this context – fine, perhaps, if your blog is of the “what I had for breakfast” variety, but not for a serious business site.

A little research suggests that WordPress is very proud of this new development, but also led me to the setting which allows me to switch this “feature” off. I resent the default being changed to give my users something I did not know they were getting.

I only discovered recently that WordPress sticks advertisements at the bottom of my blog. You do not see these in Admin mode, so I never got the full user experience. I spotted it on a page reporting Lord Justice Jackson’s less-than-complimentary views (which I share) on the type of solicitor who incites people to begin no-fee, risk-free litigation. The WordPress word-association technology worked perfectly, for there at the bottom was an advertisement for just such a firm. I think I can pay my way out of this embellishment and will do so when I have time for the mechanics, as distinct from the contents, of the blog.


Blogging, Friending and Tweeting: what lawyers should and should not do

April 1, 2011

As Twitter reaches its fifth birthday, lawyers and ediscovery providers alike seem suddenly to be discovering its value as a tool for engaging with others. At a New York panel, I talked about some general benefits and pitfalls of blogging and tweeting, whilst the other panel members looked at issues specific to lawyers.

I am back from New York, where my primary purpose was to speak on a CLE panel at the invitation of the New York City Bar Association. The panel, called Blogging, Friending and Tweeting: what attorneys should and should not do, was moderated by Denise Backhouse of Morgan Lewis, and the other speakers were Jeremy Feinberg, Statewide Special Counsel for Ethics in New York’s Office of Court Administration, Ronald Minkoff of Frankfurt Kurnit Klein & Selz, PC, and Ronni Solomon of King & Spalding. Denise and I last did a panel together on data protection and privacy in Munich in December, and I came across Ronni in Singapore last year, talking about sanctions. I mention this to emphasise that none of us are “social media consultants” – we all do other things, and our talks were about our experiences and observations from real life. There was not a mention of Klout or PeerIndex or any of those arbitrary measures of “success” in social media.

All I care about is whether those who are interested in my subject can find me, will come back, and will tell their friends. That is not a bad starting point for lawyers, but they have overlays of ethics and professional conduct which complicate that simple starting proposition. They also have other factors – set ways, marketing departments and a culture carefully honed for earlier times – with which some compromise may be necessary.

I opened the session by explaining that most of my work involved the collection and dissemination of information about ediscovery / edisclosure. For me, therefore, blogging and tweeting is my occupation, not merely something ancillary to my occupation.  I am not accountable to anybody for what I say, but I nevertheless have some self-imposed rules: there is no point in being anodyne – a certain spikiness is needed; don’t assume that people will read every line but write as if they might; if you seek to be authoritative, then it is worth checking the facts and following basic journalistic rules like distinguishing between fact and commentary; there is no point in blogging if you don’t have opinions and passion, and no point if you can’t write. Read the rest of this entry »


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