Time to take the next steps: a Hong Kong eDiscovery conference

Leaving aside Australian conferences, this was my fourth AsiaPac event. Two years ago, I co-chaired a conference for LexisNexis in Singapore. Shortly after that, Jeffrey Teh and others from LexisNexis set up InnoXcell to bring business events to the region. I did conferences with them last year in both Hong Kong and Singapore and was pleased to be asked back to Hong Kong for this week’s conference.

Here is a Twitter exchange between me and whoever tweets on behalf of @Exterro and @eDiscoveryGroup after the first day of the conference:

Me: Day 1 of eDiscovery conference in HK ends – a good day. Two sessions down and one on costs to go tomorrow

Exterro: How has that conference being going? Any ground-breaking stuff happening?

Me: That is not what to expect here – slow attrition is the target rather than breaking new ground

Exterro: Well then how is the slow attrition going? [He doesn’t give up, this one]

Me: Steadily and in the right direction

eDiscoveryGroup: “Steadily and in the right direction?” What direction are they headed?

Me: If I’d known I would provoke an inquisition from all corners I’d have kept my trap shut. My report will follow.

So here is that report. “Steadily and in the right direction”, as used in my tweet, has its plain English meaning – nothing dramatic has happened in Hong Kong in e-Discovery terms since I was last here, but there is interest from a wider range of companies and lawyers provoked by much the same pressures as arise elsewhere. As with everywhere else, we need to move on from “What is native format?” to “How can I best reach my client’s objective?”.

The Discovery skills of Hong Kong cab drivers

I am in Hong Kong, having just finished the two-day InnoXcell eDiscovery conference. The purpose at these conferences – my purpose anyway – is to encourage lawyers to know their way around the rules, the practice and the technology so that they can set off in the right direction. The rules have more flexibility in them than most people realise; the technology advances in ability and reduces in cost in a way which keeps pace, more or less, with the increases in volumes. Lawyers acquire a certain confidence if, as well as knowing the facts and understanding the issues, they can use the rules to their advantage, estimate the costs and have at least some idea of what technology exists to help them to help their clients to their objective. Electronic documents holds the evidence, and knowing how to give discovery is a primary litigation skill.

Relatively few lawyers have this array of skills and knowledge, whilst purporting to offer a litigation service in which the costs and other implications of electronic discovery/disclosure are usually the biggest single component. Hong Kong taxi drivers offer a parallel.

Predictive Coding Wars: Recommind Contra Mundum

It is a novel experience to spend a whole Saturday writing a 4,330-word article whose conclusion is that none of its subject-matter is really very important to one’s readers, however much it means to the participants in the story.

If you have come to see me take sides in the predictive coding war of the last few days, you will be disappointed. My job is enlightenment: picture me, if you like, as a small boat sailing between the double line at Trafalgar as the shots fly overhead, trying to give an update on the state of the technology being used rather than a partisan account of the battle. Actually, it has been more like Sink the Bismarck, with enemy ships and planes great and small all directing their fire at one target. Fortunately for Recommind, playing the Bismarck in this scenario, we don’t get to see the final reel.

For those who do not know, I am funded on a flat-rate basis by sponsorship from the companies whose logos appear on the right. Anyone who expects me to take sides misunderstands the nature of my role. It is not just a matter of not biting the hand that feeds me, nor of holding the ring between them when they start fighting each other. The aim is to try and shine a steady light in the darkness for the benefit of those who must get on with the job of managing electronic discovery / disclosure, and to keep it burning whatever is going on around me. I do not actually think that the market gives two hoots for this battle or its outcome (if there is one), but it may be helpful to have a distillation of the debate, if that is not too dignified a term for it.

While we are on disclosure of interests, I should say that I know nearly all the people mentioned here apart from Henry V, Hamlet, Alice and Humpty Dumpty, Houdini, Pontius Pilate, Tom, Dick and Harry, Lt Farley (late of the Confederate Army) and a couple of the referenced authors.

Virtual LegalTech on 16 June – Advanced Litigation Technologies with LeClairRyan

I took part in the very first Virtual LegalTech, ALM’s imaginative way of delivering webinars online in a series running through a day, giving delegates most of the benefits of attending a conference without the cost and burden off getting to it.

I have now been asked to moderate a session for the 16 June Virtual LegalTech. The subject is Advanced Technologies for Litigation Support Professionals which goes out from 11:15am to 12:15pm Eastern Time today, 16 June.

I had a free hand to choose the panelists. At the real LegalTech in New York in February, I met Bill Belt and Daryl Shetterly, partners in LeClairRyan’s discovery solutions practice, who subsequently came to visit us in Oxford on one of their trips to the UK. They are contributors to LeClairRyan’s  ediscovery blog posts, with thoughtful articles which are practical and bang on point.

They kindly accepted my invitation to join me on the webinar, and we have put together a set of slides which begins with the New York Times article Armies of Expensive Lawyers, Replaced by Cheaper Software of March, goes through the different types of technology LeClairRyan and other ediscovery firms use in practice, and ends with ideas for establishing an ediscovery practice.

Other speakers during the day include Ann-Marie Gibbs, National Director of Consulting at Daegis, Monica Bay, Editor-in-Chief of Law Technology News, US Magistrate Judge David Waxse and former US Magistrate Judge Ronald Hedges. The judicial panel is called Why Lawyers Cannot Afford to Ignore Technology which, I think, will nicely complement our session.

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Georgetown Law eDiscovery Training Academy crosses the bridge

The technology I really want to see is a time machine or some kind of teleportation device. I once attended conferences in Barcelona and Sydney in the same week. I have had breakfast in Sydney and dinner in Washington on the same day and, later this year, I have to do a three-day conference in Germany and a two-day conference in Washington in the same week. I have had to accept that I cannot be with Sedona in Lisbon and with InnoXcell in Hong Kong next week (Hong Kong wins), and I was equally sorry last week that I could not be simultaneously in Frankfurt and Georgetown.

The Georgetown event was the Georgetown Law eDiscovery Training Academy. Guidance Software gave copies of its Encase Forensic Software for each delegate to use during the week and Craig Ball explained the computer context and showed how to use EnCase.

The faculty for the five days included US Magistrate Judge John Facciola, Chief US Magistrate Judge Paul Grimm, Michael Arkfeld (Arkfeld & Associates LLC), Jason Baron (National Archives & Records Administration), Maura Grossman (Wachtel,Lipton, Rosen & Katz), Tom O’Connor (Gulf Coast Legal Technology Center),  and Larry Center (Georgetown CLE).

Patrick Burke, Senior Director and Assistant General Counsel of Guidance Software describes the event in two blog posts here  and here, and Tom O’Connor wrote about the wrap-up here. I like in particular Judge Facciola’s comment “this conference crossed the bridge.  I for one can’t go back to superficial lectures any more.  I’ve never seen anything like this.  It’s been a terribly exciting experience for me.” 

Training and education are rather like marketing – we are always looking out for new ways of delivering knowledge and understanding. Events like this take an immense amount of organisation and need the support such as Guidance Software gave to this one. For the foreseeable future, articles, seminars and conferences will be the backbone of the education effort. This event shows us that there are different and more imaginative ways of getting messages across. I wish I had been there.

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eDiscovery in Germany: moderating a conference for AccessData in Frankfurt

It was a dark and stormy night, and as he watched the lightning split the clouds and heard the thunder rolling across the castle’s turrets and towers, he thought sod this for a game of soldiers. With six unbroken hours of speaking and moderating and a late night behind me, and only a late morning flight ahead, surely I can just be left just to sleep for a change.

The occasion was AccessData’s Electronic Discovery Conference in Germany, run in partnership with H7b1 and DRS Digital. The venue was the Schlosshotel Kronberg just outside Frankfurt, quite the finest venue I have ever spoken in. It was the home of Victoria, eldest daughter of Queen Victoria, and Empress-Dowager of Germany following the death of her husband Frederick after only 99 days as Emperor. She was the mother of Wilhelm II, which is why Britain and Germany were ruled by cousins during the Great War. It belongs firmly in the English Gothic Revival style, and the curious but comfortable mixture of cathedral-like pillars and warm, red carpets is very English, whilst the exterior is unmistakably German. The menu is similarly divided, speaking of “the “englischer Tradition der Afternoon Tea” with “Scones mit Clotted Cream und Muffins”. It is a very tangible reminder of the close relationship which once existed between Britain and Germany and the similarities in outlook and much else.

There is much that is different, of course, and the discovery of documents for litigation is one of those differences. Germany, like other countries in Europe, is having to recognise that electronic documents, and the means of handling them, can no longer be dismissed glibly as something which Americans do, with the implication that it is an unnecessary and unnecessarily expensive game. It has something of that about it, certainly, to non-US eyes, but it is important to distinguish between different points here: on the one hand we have the fundamental principle that the documents hold the contemporaneous evidence and its allied equitable principle that those who seek help from the court must be transparent about their evidence; on the other, we have the rules and procedures governing the scope of discovery and its production. One can praise one and stand amazed, sometimes, at the other.

Nigel Murray reaches Paris, raising £4,500 for Help for Heroes

Nigel Murray of Huron Legal has completed his arduous cycle ride for Help for Heroes. Not surprisingly, he was not able to keep his blog going whilst cycling, and I am pleased to pass on his emailed report (minus the photographs) which reached me a few minutes ago.

Dear All

Arrived back last night after a most memorable trip.  I am afraid I did not manage to keep my blog up to date however the “official blog” including good short videos of each day is at:  http://www.helpforheroes.org.uk/blogs/BBBR_2011/ It will take a while to look at – but the videos are excellent and really give a good feel of the ride.

Arriving in Paris after cycling nearly 350 miles was memorable.  I cycled the last of the route  – from outside Versailles to the Arc de Triomphe with the wounded (11 in 3 wheel hand powered or site-down bikes as well as other limbless on normal bikes);  a wonderful experience being amongst the soldiers with their excellent humour – and to see the reaction of the Parisians – so many just stopped what they were doing and clapped.  The car drivers however were a tad different as we managed to cause quite some traffic jams!

Arrival in Paris was excellent, despite the heavens opening and everyone being absolutely soaked during the memorial service at the Arc, but still in good humour.  The French police then escorted us down the Champs Elysee with one of the support vans blasting out various classic Bruce Springsteen hits – again to much clapping, and even dancing, from the Parisian population.  I cannot imagine either Park Lane or 5th Avenue being closed at 5pm on a Friday afternoon for a bunch of French cyclists! The French really appreciate what we did for them all those years ago – and what we are still doing today.

During the celebrations we heard that Help for Heroes had managed to raise over £100m.  A huge effort in just 3 ½ years, and thank you all for your part, especially those who have sponsored me over the last 3 years.  The Sun paper is a sponsor and had a team of 3 on the ride.  Their coverage is at: http://www.thesun.co.uk/sol/homepage/news/campaigns/our_boys/3631688/Help-for-Heroes-br-hits-historic-100m.html  and if you look carefully you can make out my back just behind the Page 3 girl!

Australian Discovery Report stresses Case Management, Consistency and Understanding

The Australian Law Reform Commission published its final report Managing Discovery: Discovery of Documents in Federal Courts at the end of May. The net effect of the recommendations is conveniently set out in the final issue of the ALRC’s Discovery e-News:

The ALRC believes that the net effect of its recommendations will be that:

• judicial officers are encouraged and supported in their role as robust case managers;
• parties and practitioners will have a clearer understanding of what is expected of them in relation to discovery obligations;
• the scope of discovery will be defined more clearly and in the context of an understanding of how information is stored and can be accessed; and
• the clarity of expectations and certainty in obligations will help to maintain proportionality in discovery costs.

The Final Report runs to 384 pages and there is a convenient Summary Report which, at 28 pages, carries the main points of interest.

The key themes on page 10 of the summary will be recognisable to anyone interested in this area:

• while the reform trajectory in the Court was applauded, there were inconsistencies in practice across the bench;
• robust judicial case management is critical in facilitating the resolution of disputes in the Court;
• rigid rules of general application impose unwanted restrictions on judicial discretion;
• expectations of parties in the Court are not always clear—uncertainties that lead to inconsistency of practice and potentially an increase in costs; and
• there is an uneasy tension between the time and money that discovery can involve and the right of parties for a reasonable opportunity to present their case.

Brand Camp cartoons say rather more than a thousand words

Few of those engaged in electronic discovery could have missed Tom Fishburne’s  Case in Point cartoons on the CaseCentral site, with their apparently infinite capacity to identify the weak points and have fun at their expense.

I had not realised that Tom has a parallel strand called Brand Camp which brings to the business of marketing the same sharp eye as he brings to ediscovery. My thanks, therefore, to Legal Aware, the blog of the BPP Legal Awareness Society, for drawing my attention to Tom Fishburne’s comment on the way marketing departments can kill spontaneity and creativity. We have some revisions to your “Tweet” and We’ve now missed the event by a week sum it all up very nicely.

Marketing is a difficult profession, and becoming more so as modern media methods allow far and fast distribution. If that means that your triumphs can reach a wide audience very quickly, the same is true of your failures, and more marketing material misses its target than hits it. In my article Twitter, Bribery and 37 Corporate Counsel in a Big Virtual Bar, I explored the conflict between (on the one hand) the immediacy and democratisation of marketing as its tools lie ever more readily to the hand of every amateur and (on the other) the risks which come with that. It is hard to reconcile that immediacy with the comfort of knowing that the business is being presented in line with the corporate ethos. There is no room for disclaimers in a tweet.

Whilst you can say a great deal in 140 characters, you can say very much more in a precisely-targeted cartoon. Every marketing department should have a few of Tom Fishburne’s works stuck up on the wall as a substitute for the thousands of words of marketing theory which drives so much of marketing practice – not always to its advantage.

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IQPC 2011 Information Retention and eDiscovery Exchange Survey

I wrote approvingly of IQPC’s Information Retention and eDiscovery Exchange which took place in Munich towards the end of 2010. I have been involved in some of the discussions about the 2011 equivalent, which will take place at the Kempinski Hotel Airport, Munich from 14 – 16 November 2011. I am very much looking forward to attending this, particularly after the conference which I moderated in Frankfurt last week and the interest and the people I came across there.

In support of the preparations for this event, IQPC has put together a survey for those with a professional interest in eDiscovery and document retention. They make the point, not unreasonably, that they can best produce sessions targeted towards people’s interests and concerns if they know what those are.

The survey can be found here. It should take no more than ten minutes to complete and IQPC will send you the results if you leave your contact details.

The sharp-eyed amongst you will have noticed that this conference takes place in the same week as the Georgetown Law CLE Advanced eDiscovery Institute in Washington. Fortunately, one is from Monday to Wednesday and the other is on Thursday and Friday.

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UK Law Firms should come to ILTA 2011 – August 21-25 in Nashville

ILTA is the International Legal Technology Association, an organisation committed to encouraging the advance of technology in law firms and, just as importantly, the advance of law firms by the use of technology. Its guiding principle is peer encouragement – the idea that we can best acquire knowledge, information and confidence by mixing with those who face the same issues as we do.

ILTA has events and programs running throughout the year, including ILTA Insight in London each April (see my report of ILTA Insight 2011 and Joanna Goodman’s much fuller one on the Orange Rag). ILTA’s main conference takes place towards the end of August each year at a suitable US venue. The word “suitable” connotes several things, one of which is mere size, because thousands of people attend from every corner of the legal IT world. Other requirements include a certain level of comfort, with leisure attractions on- and off-site for participants and, perhaps, their families – this is the height of the summer holiday season. Last year’s conference was at Las Vegas (my report is here), which comfortably met all these criteria.

ILTA 2011 takes place this year in Nashville, Tennessee at the Gaylord Opryland Resort from August 21-25. These Gaylord Resorts are vast and, as the Resort web site shows, there is something for everyone, not least the music for which the city is famous. Tasteful it ain’t, at least to British eyes, but you can go to Georgetown or the German castle at which I spoke last week if you want taste. I go for the programme, for the company, and for the opportunity to share views and experiences which is what ILTA was established to provide.

That exchange of views is as valuable to a UK lawyer or law firm IT director as to his or her US counterpart. If you run your eye down the packed agenda, you will see subjects which affect UK firms of any size. If your perception is that all US law firms are vast, wealthy and remote in kind from your own firm, then that perception is just not right. The majority of firms are relatively small, with the same pressures to cut costs and work efficiently as face UK firms, both for their own sakes and for the benefit of their clients. The agenda reflects that, and on subjects much wider than my own particular interest in eDiscovery / eDisclosure. This is what I said last year:

Not so very long ago, the role of IT departments was to provide passive services – an accounts system, a contacts database, word processing and print services. If that is all you have now – well, send your managing partner and IT director to ILTA next year, if you are still in business next year.

Your Pound buys a lot of US Dollars at the moment. As I write, BA will get you there and back for £826, and you could probably do even better by shopping around. Why not come to ILTA 2011?

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Epiq Breakfast Seminar on Cross-Border Regulatory Investigations on 14 June

Epiq Systems is holding a breakfast seminar in London on 14 June called the Challenges of Cross Border Regulatory Investigations. The speakers are Professor Dominic Regan, David Cracknell of Slaughter and May, Vince Neicho of Allen & Overy, Mark Surguy of Eversheds and me. Greg Wildisen, International Managing Director, Epiq Systems, will act as moderator.

If this subject was not already on the agenda of companies and their lawyers, the Bribery Act 2010, now less than a month away, should be putting it there. The mixture of lawyers and edisclosure experts is chosen to bring a practical focus to the subject.

Further details and registration information can be found here.

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East, West Home’s Best – to a Midlands Law Firm with Epiq Systems

A trip by train to talk to a regional law firm gives an excuse to recommend the iPad as a library of those documents you will never read at your desk, and to recommend two papers in particular which address technology-assisted review. The message for the lawyers is not just of risks but of opportunities; the point is not whether you do document-heavy litigation but whether you could win work you do not already do. What case does not involve some electronic documents?

All my trips to foreign places (Orlando, Frankfurt and Hong Kong in May and June, for example) and the frequent references to developments in other jurisdictions do not detract from the fact that the flag which I fly is the eDisclosure Information Project, with its roots firmly in England & Wales. That word “disclosure”, part of the late-1990’s fad for changing the names of things in the hope of making them better, does at least serve as a discriminating label for the purpose of Google searches by those wanting to know more about it, so people can easily find me. One of the pleasures which results from this is to be invited to go and talk to a law firm, particularly one which recognises the potential for new work as well as the potential for risk.

No eDisclosure talk is complete without references to risk – risk of losing costs, risk of damage to reputation, and risk of actually losing the case because of disclosure failures. Having dangled a few of those, like the corpses of malefactors on an 18th century gibbet, I like to move on to positive things – of opportunities to be grabbed, work to be won, and reputations and careers to be enhanced for individuals, as well as for the law firms. I will happily talk on my own for an hour – four hours, indeed, if anyone will listen – but the most interesting and useful sessions are those done in tandem with a provider of litigation services picked from the list of those who sponsor the eDisclosure Information Project. It is even better if somebody else does the picking, either where the provider takes me along on their appointment or, as last week, when the law firm asks me if I would be willing to turn up alongside their choice of provider. This trip was to the Midlands in the company of Ben Hammerton, Senior Business Development Manager for Epiq Systems. It was the second visit by both Epiq and by me and it is always good to be asked back somewhere – it says something positive about the first visit and it gives the opportunity to expand a little on areas already covered.

PissOffPRs 1.0 and PissedBot 2.0 – essential tools for everyone in Legal IT

The vintage legal blogger and tweeter, Charon QC [“veteran” surely? Ed] features on every list of legal commentators worth following. His 81,000 or so tweets encompass everything from what he had for breakfast, through television reviews and political comment, to (which is what really matters) focused and timely commentary on the big legal issues, driven by a very strong sense of the supremacy of the law, a feeling for what is right, and a sharp eye and pen for the follies of mankind.

One of his recent tweets offered a rebuke to a public relations person who had sent him not one, but two, copies of a press release, apparently in the hope that he would promote some product. As with most other areas of business life, legal technology PR contains a few who are absolutely excellent and those, too many to mention, whose continued existence in this market is a source of constant amazement. Too many of them have no idea what they are trying to promote, no idea about the market, and no idea about relating to people, and they were clearly in another room when the basics of grammar and spelling were taught at school.

Down at the bottom of my list are those who, knowing that I have some interest in legal technology but having no idea which bit of it I focus on, send me everything – billing and time-recording are obviously my favourites. I once got an e-mail clearly intended for Charles Christian – my e-mail address but the heading included Charles’s name or, at least, a recognisable variant on the spelling of Charles’s name. I was once sent, presumably in error, a spreadsheet of all the intended recipients of legal technology mailshots, complete with (in some cases) a commentary about them. My own entry was sadly lacking in detail, but I would like to think that it would read something like:

Grouchy, picky, does not suffer fools gladly, intolerant of material which is either irrelevant or likely to alienate any recipient. Has world-wide audience, does not hesitate to use it, and is likely to be read by the clients. Catch him on the right day with a topic of interest to his readers and he will do his best to make it interesting. Handle with care.

Anyway, Charon QC’s tweet said that he had sent the offending public relations person a bill for his time spent on reading the unsolicited press release. Presumably the fee doubled because he had been sent two copies of it.

Nigel Murray takes to his wheels again for Help the Heroes

It is that time of year again. Nigel Murray of Huron Legal sets off this weekend for another arduous cycle ride across Northern France in aid of the charity Help for Heroes. His blog page is suspiciously light on training information this year and I suspect that, like the rest of us in edisclosure / ediscovery, he has been too busy to spend much time tuning his muscles or whatever it is athletes do.

Mary Ann and I had intended to be there this year – the sea crossings were checked and the hotels lined up, and we were looking forward to the break, the food and, almost incidentally, the pleasure of watching Nigel pedal by. Then came the invitation to moderate AccessData’s ediscovery conference in Frankfurt on Tuesday. Various options were discussed: you can go by train from Cherbourg to Frankfurt in not much less time than it takes to fly to Australia; we could cut short our break and I could stay at Heathrow for a dawn flight on Tuesday. It became clear that I could foul up the holiday, catch no more than a glimpse of Nigel, and arrive knackered for the conference after much rushing about; alternatively, I could just abandon Normandy, go to the splendid conference hotel the day before, and wallow in comfort and good food before taking to the platform. We can go to Normandy some other time and my opening talk – a tour of the world ediscovery scene – will be the better for it.

Nigel will manage without us, despite the apparent shortage of training. At the time of writing, donations total £3,401.00 against a very ambitious target of £6,000. For comparison, he raised £3,941 last year against a target of £2,200. His sponsorship page is here.

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LDM Global takes the UK Bribery Act and the FCPA to New York

As befits any ediscovery / edisclosure company with the word “Global” in its name, LDM Global is running in New York an equivalent of the session which I did with them and McGuireWoods recently in London.

Called the UK Bribery Act and the FCPA, the session draws attention to the international implications of the global reach of the UK Bribery Act with the information management implications which flow from that.

Speakers include Tim Barnes and Remy Rodas, Partners at Curtis, Mallet-Prevost, Colt & Mosle LLP and Don Macfarlane, Head of Operations & General Counsel, LDM Global, the event takes place starting at 8am on Wednesday, 8 June at the Yale Club of New York. Further information and registration information can be found here.

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Final Reminder: AccessData EDiscovery Seminar in Frankfurt on 7 June

This is a final reminder of an event taking place in Frankfurt on Tuesday 7 June at which I am moderating a conference on ediscovery for EU, and specifically German, companies. The conference, which is organised by AccessData, includes a range of experts on the legal, practical and technology implications for companies in, or doing business in, Germany

The details are here and, even at this late stage, an e-mail to Charity Wagner at AccessData may get you a place at what promises to be one of the more interesting events in which I participate this year.

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