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 thebriberyact.com, 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.

thebriberyact.com 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.

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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.

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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 e.law 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.

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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.

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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.

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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.

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