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

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.

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

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.

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Three webinars from Digital Reef

Digital 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.

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

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.

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