Barristers, Berlin and the Bribery Act – an eDiscovery Compendium Part 1

September 30, 2011

The three words beginning with “B” in my title are a random selection from the top of my running list of things to write about.  They all have a connection with eDisclosure / eDiscovery which is not necessarily obvious (barristers and disclosure? Surely solicitors deal with that?).  The list might equally have read “Pennsylvania, Peck  and Model Order”, which would have been equally random and equally discovery-related.

I rarely do compendium articles which sweep up a lot of subjects. A mass of interesting things, however, has turned up about eDiscovery in the same week as I prepare for a run of events – seven of them, in six different countries in five weeks, with another shortly afterwards. Each of them requires at least an outline to be written; they involve liaison with others; not least, they require bookings to be made and some system to be created which ensures that I turn up in the right country, on the due date and with the right set of notes. I leave for the first of them tomorrow.

The result is a long article which picks up as many as possible of the strands which have been flying by. Google Plus will one day be a very good tool for this sort of thing. At the moment, my G+ audience would be about 10 people against the 200 or so page views per day on this blog and over 900 Twitter followers. A compendium article has the side merit of showing in one place how many different components of business life are touched by eDiscovery – which is in fact the theme of at least one of my talks. I break the article into two – this one about the journeys and their relevance to eDiscovery generally, and a second which flicks through the incoming material. Except where I am referring specifically to the UK rules, I will stick to the term “discovery’ and try and ignore the faddy word “disclosure” which came into our rules in 1999 in the curious hope that the label change would improve matters.

My conferences page shows what the events are and has hyperlinks where relevant (hyperlinks are the bane of my life and I will not repeat them all here).  In summary, I am doing a panel on early case assessment with Digital Reef in Washington and then going straight to Dublin where I am doing a UK and common law round-up with Senior Master Whitaker, and a US updates session with Browning Marean of DLA Piper US at eDiscovery Ireland 2011. After part of a weekend at home, I go to Berlin to give a speech to IQPC’s conference, on worldwide eDiscovery developments and why they matter for EU companies. I am back home for three days before going to Sydney for the Nuix Exchange, to join Senior Master Whitaker, US Magistrate Judge Andrew Peck, Craig Ball, David Cowen of the Cowen Group and others at an event which promises to be both intensely educational and extremely pleasurable. Read the rest of this entry »

ECA with Digital Reef at the Masters Conference in Washington

September 29, 2011

The Masters Conference for Legal Professionals takes place in Washington on 3 to 5 October at the Ronald Regan Centre. I will be there, as always – this is one of my favourite events in the calendar, and often my only excuse to go to Washington each year.

The Masters Conference has just released its full list of speakers which, as usual, includes well-known representatives from the judiciary, from law firms, from providers and from corporations.  I am taking part in a panel organised by Digital Reef and called Early Case Assessment: Is It Working? The moderator is Navigant’s Shawnna Childress and the panel comprises Steve Akers, of Digital Reef, Browning Marean of DLA Piper US, Bill Belt of LeClairRyan, Michelle Briggs of Goodwin Procter, and Hampton Coley of Hughes Hubbard & Reed.

I have done events with several of these people before. Shawnna Childress is a co-founder of Women in eDiscovery and a tireless promoter of eDiscovery education in addition to her day job. Browning Marean and I have shared platforms in most of the common law jurisdictions. Bill Belt and I do Virtual LegalTech webinars together, most recently on 15 September. I moderated a video with Steve Akers a few weeks ago. I anticipate a lively panel with this mix of people.

The rest of the agenda looks interesting, as it always does, with a judicial panel, a session on predictive coding and, not to be missed, the annual Women in eDiscovery panel, sponsored by AccessData and moderated, for the third year running, by AccessData’s Caitlin Murphy.

I will, alas, miss the last day – Browning Marean and I are both due in Dublin on Thursday for the eDiscovery Ireland 2011 conference.


kCura Relativity Ecosystem Apps and on-line User Support are good marketing

September 29, 2011

I spent part of the weekend wandering around the websites of various litigation software providers (we do have fun on Sundays here). I was actually in search of quotations to support (or undermine, as the case may be) a proposition to go into an article.

I ended up on the kCura Relativity website. kCura is a relatively new sponsor of the eDisclosure Information Project and I was given a demo at ILTA – immersion in comparative functionality is not my primary interest in the eDiscovery / eDisclosure market, but I do like, every so often, to see what the user sees. The demo went a good way towards explaining why Relativity has been doing so well.

My tour of the website reminded me of two kCura points which I had wanted to follow up anyway – Relativity’s Ecosystem Apps and the materials and resources which it publishes for customers. The subjects are not directly related save that they both come under the broad heading of helpfulness to users and are both ways of building a community around a product.

Overt customer support appearing on the face of a website is a more powerful marketing tool than any quantity of material aimed specifically at attracting new users. The web site includes a lot of well-indexed documentation with tutorials and short videos to illustrate various functions and tasks. The customer portal does more than allow the submission and monitoring of support tickets; ideas can be submitted and viewed, discussed and voted up or down the priorities list. Even the customer portal has its own video tutorial.

I had the opportunity to test kCura’s responsiveness because a question came up while I was on their site. In general, I shy away from asking questions in mid-article because I then feel bound to await a reply. Shawn Gaines in kCura’s marketing department came back to me straight away with what I needed, which was pretty impressive on a Sunday. If technical support responds that quickly then users will have little to complain about.

One of kCura’s strengths is the ability of licence holders and third parties to extend the functionality of the software with their own applications, integrations and extensions. This has long been possible, but kCura has now formalised it under the name Ecosystem with a web page which provides information about existing apps. You can get some idea of what is possible by running your eye down the list. Some of these are kCura’s own apps – its Method legal hold software or apps to enable smaller admin functions; if you are able to include processing heavyweight Nuix in your library of apps then you are aiming high.


Social Media Opportunities and Risks in the Workplace

September 29, 2011

A White Paper and webinar from ZyLAB draw attention to the marketing and network advantages, and to the corresponding discovery/disclosure risks, which come with the massive growth in social media use.

I am fairly sparing with both adjectives and adverbs in my writing, probably in reaction against marketing material which contains little else.Things positive and negative, and as varied as the sophistication of some technology, the beauty of a view, the conduct of most politicians, and the stupidity of bureaucracy and of so many of the people who impose and enforce it, can all bring out my inner Roget. For the most part, however, I am content to leave the colourful words to marketeers, tabloid journalists and Americans (though I was quite proud of the recent suggestion that I specialised in “understated hyperbole”). The growth in data volumes, and particularly that of social media, entirely warrants words like “massive” which appears in my opening paragraph.

I have a double interest in social media. Nearly all my business capital lies in my blog, and Twitter is both a marketing tool and a way of keeping in touch with developments and with people around the world. Wearing my eDiscovery hat, I am more than a little interested in the implications for companies of the volumes of data pushed out by a company, by its employees and by those who have dealings, positive and otherwise, with it from the outside.

My recent roundup Some Recent Articles on Social Media Use in Companies included reference to a paper by Johannes Scholtes of ZyLAB called Social Media: the Next eDiscovery Elephant in the Corner. ZyLAB have followed that with a further paper called Compliance in the Cloud: How to Deal with Social Media in the Workplace by Annelore van der Lint of ZyLAB.

That is accompanied by a webinar  on 27 October  to be given by Hanns Köhler-Krüner from HKK Consulting, expert on Social Business and ECM Media, and Johannes Scholtes, Chief Strategy Officer of ZyLAB and professor in text mining. The registration details are here. The registration page includes an opportunity for you to describe some of your own experiences of dealing with social media. Read the rest of this entry »

CY4OR and Manchester’s Deans Court Chambers Forensics Seminar

September 28, 2011

In the nick of time, I note that forensics and eDisclosure experts CY4OR are joining forces with Manchester’s Deans Court Chambers for an evening of presentations and discussions about digital evidence, starting at 5:30pm on 29 September – that is, today.

The speakers are Keith Cottenden, CY4OR’s Forensic Services Director, and Joe Hart, barrister of Deans Court Chambers.

The subjects to be covered include:

  • What electronic evidence may exist and can aid your case
  • How to secure that evidence
  • Technological advances in digital forensics
  • How digital evidence is presented in court
  • Recent case studies

Little or nothing is taught about digital evidence in the formal part of the education of solicitors or barristers, yet an increasing number of cases – commercial, criminal, matrimonial, employment and most other things – may turn on evidence from computers, smart phones and a wide range of other things. This is an opportunity to find out something about it and to meet up with others with a professional interest in the subject.

It is not too late to book a place. The registration details and a link to a flyer about the event can be found here.

Incidentally, CY4OR publish a useful email newsletter (which is where I came across this event). You can subscribe to it from their home page.


Late eDisclosure application tacked on to pre-trial review at a cost of £47,000

September 28, 2011

Court decisions about procedural hearings rarely tell the full story. There may be all sorts of reasons why two good firms of solicitors should find themselves, three months before a 10-day trial, at a pre-trial review onto which had been tacked a specific disclosure application and an application to strike out parts of witness statements. There may also be good reason why one of those parties had clocked up £47,000 in costs – “a very large sum of money for a one hour application” as the judge said mildly.

The case is Omni Laboratories Inc v Eden Energy Ltd, and the hearing came before Mr Justice Akenhead in the Technology and Construction Court. I am obliged to His Honour Judge Simon Brown QC for drawing my attention to it.

The ruling is short and I will leave you to read it, merely pointing to the points which appeal to students of case management. Read the rest of this entry »

More on Software-Assisted Review as Applied Discovery and KMPG add Equivio>Relevance

September 27, 2011

Electronic discovery company Applied Discovery and KPMG are amongst those who have recently partnered with Equivio to integrate Equivio>Relevance into their existing eDiscovery applications. These two recent announcements give me an opportunity to return to the subject of software-assisted document review using what is generally known (but see below) as predictive coding. Recent discussions with some lawyers have shown scope for fundamental misunderstandings about what this kind of software does, and a look at the explanations produced by Applied Discovery and KPMG, as well as those of some other players in this space, may help.

My primary objective is clarity for those who come across the names and the terminology but are not necessarily clear as to the functionality being offered or its purpose. There seem to be three aspects which some lawyers find difficult about this kind of software, each of which is worth challenging. These are the following:

  • They think it is being sold as a substitute for human review of the documents which are to be disclosed. That is not its purpose. It provides (amongst other benefits) a means of identifying irrelevant (or less relevant) documents or, to put it the other way round, a way of prioritising documents so that those identified provisionally by the software as the most relevant or most important are brought to the top. The important word here is “provisionally”, with its clear implication that the lawyers get every opportunity to double-check both what has been ranked as important and what has not.
  • It is the subject of debate about judicial acceptability which, again, follows from a misunderstanding both of what it does and of what the courts expect.  You may care to read an article called Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat which reports on what I describe as “one of the clearest statements yet by a judge that the use of new technology like predictive coding is an acceptable way to conduct search”. Judge Peck’s immediate context may have been the US Federal Rules of Civil Procedure, but the principles which he covers apply anywhere, and the UK’s Senior Master Whitaker has said much the same both in conference speeches and in his judgment in Goodale v Ministry of Justice. Master Whitaker has also emphasised repeatedly the first point made above – that none of this software is intended as a substitute for human review of documents to be disclosed; he has heard this reaction as well.
  • There is a paradox inherent in the nature of lawyers. They crave certainty but prefer it expressed in words rather than in numbers (a point which comes up in my recent report about the risk management function of corporate counsel). The statistics-based evidence of an application’s accuracy may underpin a decision to use this type of software, but lawyers still prefer the evidence of their own eyes. In fact, the applications give every opportunity for output to be validated by humans, but (in a second paradox) this may be getting lost in the marketing literature’s emphasis on the science.

The second of these points, judicial acceptability, is adequately covered in my Judge Peck article. In this article, I will focus on the lawyers’ own confidence in these applications as an aid to lawyerly judgement, not a substitute for it. To do that, I will look at the descriptions of what these applications do rather than on the science behind them, supporting the relevant parts of the Applied Discovery and KPMG materials and by extracts from those of other products with similar functionality.

First, however, it is worth saying a few words about terminology, not so much to define the labels as to pick the generic purpose out from the proprietary or product-specific names given to this kind of functionality. They all work slightly differently, and I defeat my object of simplicity if I qualify my deliberately broad descriptions with any attempt to describe the distinguishing features of each of them. Read the rest of this entry »

Costs Management Panel at the Legal Week Commercial Litigation Forum

September 25, 2011

A parallel emerges between the management of Britain’s railways and the way the civil justice system is run. In both of them, the occasional star project cannot hide the fact that the rest is run-down, neglected by government and inadequate both for its users, for its role in the economy and for the fulfilment of fundamental duties of the state.

St Pancras StationI made it to only the last session of the Legal Week Commercial Litigation Forum, held at St Pancras Renaissance Hotel last week. St Pancras itself is a triumphant example of a building whose modernisation has repurposed both the hotel and the station for the 21st century whilst keeping the grandeur and style of its high Victorian origins. The Eurostar trains leave here for Lille, Paris, Brussels and points south, a gleaming, modern and highly efficient transport system looking wholly at ease in the refurbished red brick Gothic of the 1868 station.

Although you seem to appreciate, or at least to tolerate, my occasional geographical, historical or literary allusions, there are in fact parallels between St Pancras Station and the delivery of civil justice in England and Wales. St Pancras and Eurostar may gleam and work efficiently, but the rest of Britain’s rail system and stations are run down, overpriced, badly managed and wholly unsuited for the demands placed upon them. Successive governments have shown no interest in how the railways ought to work for the benefit of those who use them and for the economy generally, and have milked them for profit. If you can afford to travel first class, then you may be reasonably sure of a seat at least, but the only trains which seem regularly run to time are the international connections out of St Pancras. The focus on those who can pay, on the occasional star project, and on international business, does nothing to improve the tired infrastructure, the declining quality of service and the ever-higher prices. Read the rest of this entry »

Some Recent Articles on Social Media Use in Companies

September 24, 2011

This post collects together a few articles which appeared at about the same time as Tim Bratton’s talk Should Corporate Counsel Use Social Media? at the Legal Week Corporate Counsel Forum Europe last week. These articles cover the marketing, the practical and the risk-related aspects of using social media, and they expand on some of the points made in the talk, going beyond the use by corporate counsel and into other areas to which they should be alert.

A more formal analysis of the benefits of using social media appears in an article called Not Your Marketer’s Social Media:Ten Ways Lawyers Can Benefit from Non-Marketing Uses of Social Media by Dennis Kennedy and Tom Mighell. The article identifies  a number of reasons apart from marketing why one should use these forms of communication, concluding that they all contribute to marketing whatever their primary driver. The word “social” implies involvement and usually (but not necessarily) interaction. Delegation away from those with a genuine interest in the company’s products and its market (which may, of course, include marketing departments) loses that driver.

The downsides include potential damage to reputation – see this article  about a tweeting initiative by the Guardian on the 10th anniversary of 9/11 which was pulled very quickly in a hail of protest. This example is particularly interesting because, as the author notes, it is not necessarily easy at first to see what is wrong with what the Guardian was doing. There was no ill-intent here, nor (one assumes) a solo frolic by an unauthorised junior, just an idea which fell flat. There is a danger, in our over-cautious times, that misjudgements like this are seized on by opponents of new media to damn the whole idea, or to hedge future uses around with so many constraints that they lose the immediacy which gives them value.

Downsides come in other forms, including the discovery risks highlighted in an article called Social Media: the Next eDiscovery Elephant in the Corner by Johannes Scholtes of ZyLAB. The discovery / disclosure problems come in all shapes and sizes, not least the pure volume revealed by the statistics which Johannes Scholtes sets out. Employment issues, evidence unwittingly revealed, modifications to our expectations of privacy – these are all traditional discovery matters given alarming new life by the extent of social media use. Read the rest of this entry »

Should Corporate Counsel Use Social Media? Serious Entertainment at the Corporate Counsel Forum Europe

September 23, 2011

The most enjoyable session at the Legal Week Corporate Counsel Forum Europe at Luton Hoo last week had the title Should Corporate Counsel Use Social Media? – Lessons Learnt and Opportunities Found. It came between the information management session in which I took part and a panel discussion moderated by Julia Chain of Huron Legal called Post-Crisis Era: Threats and Opportunities, whose opening references to double-dip recession set its tone. Social media may have seemed light relief in between these topics. That does not diminish its importance nor the serious impact, for good and bad, which its use may have on a company.

The session was a solo performance by Tim Bratton, in-house counsel at the FT, known to me hitherto only on Twitter as @legalbrat and from thelegalbratblawg. By “solo” I mean that Tim was the only person on the platform (and by “performance” I mean just that, a lively alternative to the stand-at-a-podium approach). Part of the point of his presentation was to show how he uses Twitter as a multi-way communications medium. Tweets sent live from the stage elicited replies from a number of lawyers and others, showing how one can exchange ideas, throw out questions and generally keep in touch with a range of people who have interests in common with you. Linda Cheung of CubeSocial has collected some of the resulting tweets in an article called How and why Lawyers use Twitter.

There was, Tim said, a serious marketing point amongst other motives – the FT is an information company which sells content; Twitter, blogs, FaceBook and other forms of social media are a way of reaching and engaging with new audiences. One of the points made in the earlier session about the role of general counsel was that those in one industry can benefit by sharing ideas with their equivalents in other industries – Richard Susskind predicted some time ago that this horizontal exchange of ideas was a potential threat to external lawyers who had hitherto been a company’s only source of legal information and ideas. Susskind’s point was to encourage external lawyers to take part in the conversation or risk being bypassed. Tim Bratton showed us how it was done. Read the rest of this entry »

The Information Management Panel at the Corporate Counsel Europe Forum

September 22, 2011

My introductory post about Legal Week’s Corporate Counsel Europe Forum was called Drowning in Regulation, and covered what its title implied. Apart from the panel which I was on, which was dedicated to the subject, there was little reference to information management at any of the panels which I attended or in the discussions in between. Some would simply take it for granted because their companies are good at it; perhaps those whose role involves firefighting litigation or investigations were back in the office fighting fires, whilst those with responsibility for the specification and implementation of enterprise content management and all its components and extensions are not those invited to conferences like this.

Since we know from the accounts of almost everyone who offers information management solutions to companies that the cost of electronic disclosure is a major concern, I can conclude only that this audience self-selected as having other responsibilities. I spoke to one or two for whom the idea of single-instance e-mail archiving (to take but one obvious data source) seemed a novel concept, never mind the flow from that through into electronic discovery and response to regulatory investigations.

IBM’s George Parapadakis seems to have come away with much the same impression. His article Lawyers are from Mars, Technology is from Venus expressed frustration that many of the non-discovery problems identified during the sessions were ones which could be mitigated by investment in appropriate technology solutions. He gives examples and, if I incorporate his article by reference, I can avoid repetition. My own conclusion lies in what I say above – there is a gap between those responsible for implementing information systems and those who could benefit from them, and a further gap between the people who generate and use information and those who have responsibility for identifying and producing documents to lawyers, courts and regulators or for the purposes of internal investigations. Read the rest of this entry »

The International Association of Women Judges London Conference 2012

September 20, 2011

The International Association of Women Judges (IAWJ) is a non-profit, non-governmental organization of more than 4,000 members at all judicial levels in more than 102 nations. Formed in 1991, the IAWJ has united women judges from diverse legal-judicial systems who share a commitment to equal justice and the rule of law. Lady Hale, a Justice of the Supreme Court of the United Kingdom is the current President (I wrote about Lady Hale’s fine speech on access to justice in this article  )

By happy chance, Lady Hale’s tenure coincides with the successful bid by the UK Association to host the IAWJ conference in London next year. The dates are 2 to 5 May and the conference has its own website here.

The IAWJ conference is looking for sponsors for this significant event and is offering exhibition opportunities and other promotional involvement. If you are interested in knowing more about this, please contact Fiona Whitehead on 0870 143 6978 or by email at


Drowning in Regulation – a day at the Corporate Counsel Europe Forum

September 20, 2011

Despite its title, this is “about” Legal Week’s Corporate Counsel Europe Forum, held at Luton Hoo, last week, in only the loosest sense, consisting more of random reflections derived from listening to first-rate speakers with in-house responsibility for legal and compliance matters at an extremely good conference dedicated to them. More focused posts, about the information management and the social media sessions, will follow.

I get to see a lot of places with airports in the course of a year. This year’s destinations include New York, Hong Kong, San Francisco, Singapore, Nashville, Luton, Washington, Dublin, Berlin, Sydney and Paris. “Luton?”, you ask. Well, that is what I thought I heard when George Parapadakis of IBM first asked me to take part in a conference with him.  Luton Airport is full of people rubbing their eyes with shock at the discovery that the final bill for the “budget” ticket to their chosen destination has trebled the web site price, with extras like a seat, use of the lavatories, access to the stairs, baggage fees and credit card charges. In addition, the plane is actually going to land 100 miles away from their resort, in a neighbouring country. Apart from that obvious parallel with lawyers and their bills – inflation by “extras” and divergence from the clients’ objective – it was hard to see why Luton would be hosting a legal conference.

What George had actually said, it transpired, was Luton Hoo, a place whose conference centre alone was grander than most, even without the splendours of the main house. The event was Legal Week’s Corporate Counsel Forum Europe whose entire delegate list, and many of its speakers, were in-house lawyers, many from household-name companies. I got into trouble on Twitter later by describing corporate counsel as the “most important” people in the eDiscovery market. It reflects a rather quaint, old-fashioned view of mine to the effect that the client (patient, pupil, voter, anyone who is the buyer or end-user of products, services or policies) is the one who matters most. It ties in with my repeated stress on the objectives behind everything we do which, in eDiscovery, seem to get lost in the focus on rules and on the miracles of technology. We have to keep asking “what is this for?”

I could attend only the first day of the Forum, something I very much regretted as I drove away leaving the rest sitting down to their gala dinner. I do not have to time to write, nor you to read, everything which was useful, interesting or both, so my summary, split across three posts, is a selective one – some musings on the role of and burdens on general counsel, a few particularly apt quotations, a summary of my own panel and, what was easily the highlight of Day 1, a lively talk about the use of Twitter and other social media. None of that necessarily ranks among the most important outputs from the day, but I have the luxury of choosing my subjects. I will start with an apparent diversion derived from hearing in-house lawyers talk about the things which fill their days.

A diversion: hitting the target whilst missing the point

One of the running ‘jokes’ of New Labour’s time in office was that its obsession with setting and reaching defined targets became more important than any actual benefit to anybody. Education is the most obvious example of an area in which every participant – government, schools, universities, headteachers, pupils, parents, local authorities and the wholly useless OFSTED – had an interest in the achievement of ever better results. The proper way to reach that is to raise the standards and the quality of the teaching. The timescale required for that does not suit politicians, who can claim the same apparent result within an electoral cycle by producing quality yardsticks which are more easily achieved. These appear as checklists, quotas and regulations which owe more to the ease with which they can be measured than to their value in educational terms. If you can tick the right boxes, so the logic goes, you must be doing well. The inevitable result is that everyone involved plays to the checklists. The real objective – a better education for the next generation – gets lost in the form-filling, itself a burden so onerous that it consumes all the available resources. Read the rest of this entry »

Moderating a video discussion with Digital Reef: Preparing eDiscovery Data for Review

September 20, 2011

Whilst I was at ILTA in Nashville in August, I moderated an eDiscovery discussion with Steve Akers, CTO of Digital Reef and Peter Mansmann, CEO of Precise Litigation Technologies. Digital Reef has now edited our discussion down into three short videos and published them on its blog under the heading Preparing eDiscovery Data for Review. The three sections appear under the titles An Introduction, Strategies, and Tools and Techniques.

I used the introduction to draw attention to the gap which so often appears between the objectives – the clients’ objectives and those of the court – and the discovery work done by the lawyers in purported compliance with those objectives. US sanctions cases tend to involve some permutation of breaking the rules, failing to produce documents, and less than open behaviour vis-a-vis opponents and the court. It is no less a failure of duty when they disclose too much – throwing piles of irrelevant materials at opponents is often used as a tactic, but it is more often done, I think, because no one applies their mind to the proper scope of discovery. It is not a binary option – disclose it all or get sanctioned; there is a middle ground.

The same is true in the UK, even if we lack the risks which US-style sanctions bring. The courts in both jurisdictions are coming under pressure to hold down the costs of discovery. The paradox is that those who complain about it – the clients – are the very people who could control it, partly by the way they manage information on their own systems, and partly by negativing their lawyers’ assumption that they want them to fight for them in every last ditch. The cost of procedural infighting, when added to a lack of knowledge about what are, after all, the clients’ own documents, can add significantly to litigation costs which do not bear at all on the issues, the merits or the substantive arguments.

The first of the three videos is largely taken up with my observations of this kind. In Parts 2 and 3 I pick the brains of two very experienced players in eDiscovery and invite them to suggest how we might reduce costs and focus on the things which matter.

In what may appear to be an unrelated episode, I recently recorded a webinar for Virtual LegalTech with Bill Belt and Daryl Shetterly of LeClairRyan and with Heather Bryden of Capital One Bank. Its title was Unbundling Litigation: Selecting and Using eDiscovery Counsel, and we focused on the benefits of using specialist lawyers to handle eDiscovery alongside the merits counsel.

The connection is that I am taking part in a panel session on Day 1 of the Masters Conference in Washington along with Steve Akers and Bill Belt with Shawnna Childress of Navigant as moderator. The title is Early Case Assessment (is it working?) and I think it likely that some of the themes from the earlier events will recur in the ECA panel.


Epiq Systems webinar: the Challenges of Cross-Border Regulatory Investigations on 21 September

September 20, 2011

One keeps hearing of “Bribery Act fatigue”, with the implication that companies and their lawyers either think that the subject was oversold or that the absence of a headline prosecution implies that we can all relax. The sense of urgency has perhaps been diminished also by the early focus on corporate entertainment, which gave rise to much exaggerated fear before apparently dropping off the agenda, and by the government’s public mishandling of the SFO’s future.

All this may have had the effect of diluting a proper sense of urgency amongst companies and their lawyers. The Bribery Act has been in effect only since 1 July and the noises coming from the SFO give warning that it is very much open for business on this subject.

One serious implication is the inter-relation between the UK Bribery Act and the US Foreign Corrupt Practices Act (FCPA). Many companies will be subject to both jurisdictions and may face investigations which cross borders. This is the headline subject of a webinar tomorrow, Wednesday 21st September at 9:30am Pacific time / 5:30pm BST which is entitled The Challenges of Cross-Border Regulatory Investigations and which covers also the key differences between ESI management for litigation and an investigation, and how to prepare for and respond to an investigation.

The webinar is given by Deborah Blaxell, Legal Consultant, Epiq Systems, Emma O’Kane, Senior Associate, Eversheds LLP and Mark Surguy, Partner, Eversheds LLP and is co-hosted by the Masters Conference and EMC.  These are all topics on which both Epiq and Eversheds speak with the authority of experience, and a webinar is a convenient way of keeping up to date with developments. Registration is here.


The Needle on the Broken Record – why UK Law Firms should go to US Legal Conferences

September 18, 2011

My annual suggestion, already made in recent posts, that UK law firms ought to attend US conferences about litigation practice, gets a last outing for 2011 just as the traditional law firm model is given five years to live.

fbridgeA recent article by Richard Morrison in the Times identifies some expressions which remain in the language despite having lost any real meaning for today’s generation. Its starting point is that the longevity of modern paints mean that “painting the Forth Bridge” is no longer a task which must be restarted at one end as soon as the other end dries, so its use “by millions despairingly engaged on a task that never seems to end” ought to die. It will probably survive, he says, just as “you sound like a broken record” remains in use despite the fact that “almost nobody under 40 knows that needles used to stick in the grooves of scratched LPs”.

Until recently, promoting the subject of electronic discovery/disclosure has seemed a bit like painting the Forth Bridge. We are hearing rather less, however, of starter reactions like “You mean that an e-mail is a document?” and “My clients won’t pay for electronic disclosure – excuse me, I must go and print and read 4,000 e-mails” and have moved on to “My clients won’t want me to co-operate”, “What practice direction?” and “The judge won’t understand any of that”.

We do still get the broken record sound of UK and other non-US lawyers saying “Electronic discovery is something Americans do and look what an expensive mess they make of it”. The fact that this statement is not wholly without foundation is not a reason for ignoring the subject in the UK. Indeed, the rather brutal self-denigration (like ours, but bigger, as everything is in America) which characterises the US generally at the moment applies equally to eDiscovery. What the US has which we do not is a large body of players from all parts of the eDiscovery wood who engage in continuous discussion as to how to improve matters.

It is now my turn to sound like a broken record (“We know”, you say). UK law firms face the same issues as their US counterparts both at the lawyer level and with the people responsible for IT and for litigation support. The US rules and practice may provide some extravagant and (to our eyes) unnecessary loops, hoops and hurdles, and we may argue with the idea that they are “ahead” of us in any sense which bears on the true objectives of discovery/disclosure, but that is the very reason why we should take notice of what they do and say. If the processes and technology developed in the US are good enough for litigation under the Federal Rules of Civil Procedure, then we ought at least consider them. We can discard the bits we don’t like and still learn a great deal.

There is more to it than that, of course. The UK law firms which have survived and even prospered in the recession have been those who did not have all their eggs in one basket (there is another archaic expression which still has meaning). Most of the world’s economies, including the US, have taken a bashing, but you spread the risk if you look outside the UK and outside Europe for at least some of your work. No country is more litigious than the US and much of that litigation, to say nothing of the impact of regulators and other state authorities, is non-optional, recession or no recession.  Furthermore, much of it spans jurisdictions, partly as a result of the globalisation of commerce, and partly because various organs of the US state like to think that our business is their business. You cannot pitch for US contentious work if you do not know something of the rules and if you do not measure up to the standards, not least in technology, that they expect. Read the rest of this entry »

Huron Legal: Cross-Border eDiscovery Breakfast in New York on 21 September

September 16, 2011

The US is considering possible rule changes in relation to preservation. The UK is tackling case management and costs management. Australia is chewing over the recent report on electronic discovery. New Zealand has a new ediscovery practice direction coming shortly. There are are different points of view being expressed about all these things, but they have in common that their underlying problems, however difficult, are capable of resolution. We may have different views on what must be done to reduce the time and costs of managing electronic discovery, but there is no deep conflict as to the objective within each jurisdiction.

Cross-border eDiscovery, like anything else which involves the laws and practices of more than one jurisdiction, inevitably has an additional dimension.  That goes beyond relatively straightforward questions, occurring in many matters of law, as to  whose rules to play by, because discovery often raises direct conflicts which seem incapable of resolution. This operates at many levels, from fundamental differences of principle down to matters of mechanics. If your starting point is that one jurisdiction favours openness above all whilst another believes that privacy and data protection rules are paramount, then real conflicts are inevitable.

The Huron Legal Institute
is giving a complimentary breakfast briefing about Cross-border eDiscovery on 21st September in New York, starting at 8.30am. The speakers come from the judiciary, from corporate counsel and from lawyers skilled in this area as well as from Huron Legal, and the agenda is as comprehensive a survey of the issues and approaches as one could hope for.

The program is here and it includes a link to enable registration. I know most of the participants and am willing to guarantee that this event will amply repay your attendance.


Keywords and Cooking: an eDiscovery Parallel

September 12, 2011

There are not many things which we can all agree on in eDiscovery / eDisclosure. You would probably get near-unanimity as to what the rules say in any jurisdiction (at least from those who have read them), and most people would probably be able to agree as to what their bare words mean. We would probably not fight over the fact that a judgment or opinion had been delivered or by whom, and its broad implications may not provoke too much dissent, whatever argument there may be about its application to other cases.

It is probable that most would agree, if pressed on the subject, that there is an obligation to give discovery of electronic documents on the same basis (at least as to broad definition) as paper documents, though not everyone actually does so or does it properly (“properly” in this context meaning something different from saying “Here’s everything”). Finally, everyone will nod sagely when it is asserted that disclosure/discovery is an expensive component in much litigation, although the reaction of many is to blame the rules, the lawyers, the court, and the service providers – pretty well everyone, in fact, except the people who created all this crap and made no provision for culling it down.

In addition, there are significant differences between the players. Some handle only very big litigation whilst others have many small cases, and it is not value alone which determines how much discovery there is. Lawyers and judges include some of the brightest people on the planet, but there are others who are, er, less well-endowed in that department, to judge by some of the court decisions one sees. Some adapt readily to technology but others do not, and it is not age or intelligence alone which determine this. There are countless other sub-divisions and classifications which distinguish one person from another.

One final point before I turn to the comment which started me writing this post. If you seek to address a market made up of such disparate elements as I have described, then you have to pick a section of it as your primary audience and have that section in mind as you write or speak. My target audience is not the converted nor those who have no interest in eDisclosure / eDiscovery with no motive to find out about it. I do not clutter my writing with exceptions and qualifications which recognise every standpoint. Read the rest of this entry »

The Emerging Technologies Panel at ILTA 2011: remote collections and predictive coding

September 10, 2011

It would be fair to say that, more than two weeks on, my notes of  the Emerging Technologies panel at ILTA are less decipherable than I might have hoped. That is in fact a tribute to Daniel Lim of Guidance Software, Dominic Jaar of KPMG, Keven Hayworth of Morgan Lewis and Howard Sklar of Recommind, who, moderated  by Greg Buckles of eDiscovery Journal who made more good points than I could record.

Emerging Technology Panel at ILTA 2011I can take a shortcut by referring you to Greg Buckles own article ILTA 2011 – That’s a Wrap which gives a good summary of the ground covered. Some in the audience seemed disappointed that only two topics – remote collections and predictive coding – were covered. It is hard to see that much more could fit into a single session, or that any two topics are more important just now than collections which are simultaneously straightforward and comprehensive and the modern ways of cutting the time and cost of review.

The remote collections section focused on two apparently disparate ways of making forensically-sound collections without the risks implicit in custodian self-collection or the delay and expense of sending a forensic expert to each location. Dominic Jaar put the word “remote” into context by referring to Canadian mining companies 30 hours journey time away and to foreign collections which involve bureaucratic issues like work visas as well as technology barriers like low bandwidth. Cross-jurisdictional collections involve quite enough in the way of legal issues without these extra implications. Where it is not possible to collect across the network, a portable device using a pre-programmed dongle to define the scope of the collection and to ensure consistency across multiple collections is a more than adequate, and low-cost, alternative.

However the collection is made, the lawyers must strike a balance between the expense implicit in over-collection and the risks of under-collection. Dominic Jaar neatly bridged the session’s two topics by wishing for a merger between the selection power of predictive coding and the collection capabilities of remote collection tools. Perhaps we will get there by 2013, but we have first to get acceptance for predictive coding as a defensible technology. This, as Greg Buckles indicates in his article, was the main theme of the predictive coding section of the session. Read the rest of this entry »

eDiscovery from New Zealand to Ireland

September 7, 2011

That’s a rather random pairing of countries, you might say from looking at my heading.  We are all in favour of cutting down the number of your blog posts, you might go on, but there are better ways of doing that than randomly shoving apparently unconnected jurisdictions into one article.

One connection between Ireland and New Zealand is that both jurisdictions require discovery of documents for litigation. Another, a subset of the first, is that they are both late to the eDiscovery party – of the relevant, common law countries, only Scotland has positively decided (in a report last year) that the wheels of civil justice can keep turning without any  recognition in the rules that the management of electronic data and documents requires particular attention. The rest of us to a greater (the US) or lesser (Hong Kong) extent have either tried to address discovery problems or have at least recognised that there are problems which go to the heart of delivering justice. One policy consideration here is that justice which no one can afford is justice denied. Another is that some dispute resolution business is portable between jurisdictions, and it is the high-value litigants who can often choose where to fight.

New Zealand has a draft practice direction almost ready to roll out early next year.  The New Zealand Bar Association Annual Conference last week gave over part of its time to a session on electronic discovery. My source, as before in relation to New Zealand, is the NZ eDiscovery Blog run by Andrew King of eDiscovery Consulting. In his latest post Raising the Bar – a look at the NZBA Annual Conference, Andrew summarises his own presentation, and refers in positive terms to a talk by Judge Harvey. I met Judge Harvey at the recent Electronic Litigation Conference in Singapore, and introduced him in turn to Senior Master Whitaker and to Vince Neicho of Allen and Overy, all three of us members of the working party which drafted our recent EDisclosure Practice Direction.

Here is another example, then, of opportunities to share ideas between those who are at different stages in the game. New Zealand has the enormous advantage of watching the rest of us develop our ideas, and we in turn will learn from their experiences. If you ask me why I spend so much of my time on aeroplanes, this is part of my answer. Read the rest of this entry »

Singing from the Same Hymn Sheet

September 6, 2011

Craig Ball is a US lawyer, forensic expert and entertainer – that last word probably does not appear on his CV, but  you will gather just from the title of my article Craig Ball Entertains at CEIC 2011 on Computer Forensics for Lawyers that he uses this third skill to pull the other two together.

Craig somehow manages to combine good writing and an apparently endless list of speaking engagements with actually getting his hands dirty dealing with the technical end of electronic discovery. He now has a new home for his long-standing column Ball in Your Court, whose most recent post What are we waiting for? summarises succinctly the arguments against the unthinking use of keyword search and the arguments in favour of having “the courage and wisdom to lead the way” in using more sophisticated technology.

He is kind enough to credit me with prompting his post.  The reality is rather simpler – anyone immersed in this subject, with the benefit of hearing the leading judicial thinkers (see my articles Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat and Senior Master Whitaker raises the eDiscovery stakes for unprepared litigants), of reading papers like those referred to in my articles, of listening to those who work in this area, and of seeing the technology, must surely arrive at the same conclusion. Craig heads his article What are we waiting for? I used capital letters in my Judge Peck article (the first time, I think, that I have not relied on the words themselves for emphasis) to say IT’S NOT GOING TO HAPPEN to those who expect judicial blessing for specific technology. The message to lawyers is the same: it is your case, your reputation and your client’s interests at stake here. Aren’t you even going to look at some of this technology? What are we waiting for?

I repeat often something which US Magistrate Judge Paul Grimm said in a podcast which I did with him last year. Technology will always outpace us, he said, and someone must have the courage to go first. His message applies equally to lawyers and to judges, and was not an invitation to be reckless or daring. There is now enough authoritative and properly-sourced evidence as to the deficiencies of keyword searches on their own – see again the papers referred to in my Judge Peck article – and no shortage of reminders that the duty of lawyers and judges alike is to take whatever course will bring down the time and costs of litigation. That changes, and is changing fast. We should at least know what the options are, should we not? What are we waiting for?


Adoption and the perception of the courts’ demands

September 6, 2011

What connection can there be between the formal process of child adoption and eDisclosure / eDiscovery? Adoption is in the UK news at the moment as a result of a report by Martin Narey, former head of the Prison Service and now the ministerial adviser on adoption. The report adds flesh to the bones of the common perception that social workers responsible for placing children for adoption are erecting unnecessary barriers by their resistance to trans-racial placements. Most of those who wish to adopt are white; most of the children needing to be adopted are non-white. If social workers see it as essential to match the race, colour and culture of children and adoptive parents, then the scope for alignment is very small. They claim, apparently, to be trying to meet the courts’ expectations as to evidence. You may see the connection between these two apparently unrelated subjects.

To most of us, the matching requirement is not merely stupid nonsense but wicked nonsense. The inevitable result is that people desperate to adopt are made to go through multiple layers of the hoops and hurdles which are the specialist subject of low-grade public servants whilst children are left in care and deprived of the love and attention which they desperately need. Social workers dealing with children attract public attention only at the extremes – either by neglecting a child who should be removed from its parents or by destroying perfectly good families because some overbearing pocket tyrant takes against the parents on often spurious grounds. There are many fine people in between, but there are also many whose political correctness, bent towards social engineering and pipsqueak bloody-mindedness make them erect barriers against what is supposed to be their objective.

That identifies already two characteristics in common between the social worker dealing in adoption and the lawyer handling electronic discovery – if there is anything worse than the lawyer who, whether deliberately or through incompetence, fails to give adequate disclosure, it is the one who gives too much; there are many lawyers whose obsessive compliance with a formalised perception of the rules makes him or her plod remorselessly through the discovery process at great expense without any regard to the true objective. That brings us to a third parallel, one identified by Martin Narey in The Times yesterday. He said this: Read the rest of this entry »

How Bribery Act-compliant is UK Plc?

September 6, 2011

I have been sitting for a while on one of those legal updates which the New Law Journal produces from time to time for which they gather a group of experts round a table and report their discussion in a high-quality pamphlet.  One, headed Enforcement Matters – How Bribery Act-compliant is UK Plc? must inevitably have a technology expert at the table. That role was taken by Drew Macaulay, Business Development Director at First Advantage Litigation Consulting in London, whose photograph and quotation appear at the top of the article.

I held onto this one not merely because I and most of the potential audience have been away, but because it seemed possible that the Serious Fraud Office would choose to time its first prosecution to catch our attention as we all got back to our desks. That is not as cynical a motive on their part as might appear – there is good reason why Drew Macaulay’s quotation “… will [the SFO] be given the bodies to get the job done?” comes at the top of the article: the prosecuting authorities have small resources relative to the task they have been given. We have all been waiting with interest to see where the SFO strikes first, and it would be foolish of them to blow the publicity value of the first charges by announcing them in August.

Much of the discussion at the roundtable was about the SFO’s first potential targets, with some of the betting money going on SMEs who might “hope they will fall beneath the regulator’s radar”, and some on a company domiciled outside the UK but doing business within it – both entirely plausible as examples with the widest ripple effect.

In the event, none of us accurately predicted the nature of the first “victim”, nor was the prosecution brought by the SFO as expected, but by the Crown Prosecution Service. The CPS has announced that it is bringing charges against Munir Patel,  a court clerk at Redbridge, Ilford, who faces a charge under Section 2 of the Bribery Act 2010 for requesting and receiving a bribe intending to improperly performed his functions. Patel also faces charges for misconduct in public office and perverting the course of justice. Read the rest of this entry »

ILTA 2011 – the end of the beginning? We’re just getting going

September 1, 2011

Gaylord exteriorI am back from the annual conference of ILTA, the International Litigation Technology Association, in Nashville, Tennessee.  The original draft of this post said that I was “just back” but (as more than one correspondent has reminded me) time has gone by without any post from me about it or about anything else. Catching up after two back-to-back conferences in opposite corners of the world plus an ever-busier Twitter stream and a few other things have kept me amused.  I will in due course do a couple of posts about the serious stuff at ILTA and I will point you to summaries by others of the product and company news which, however interesting and important, can be dealt with from my desk if it still seems interesting or important by the time I get to it.

Despite the best efforts of the PR people, I don’t cross the world to shut myself up in dark demo rooms or to hit the social scene. The breathless prose of the press releases offers little incentive; I don’t drink much, don’t party more than formal politeness requires, don’t really appreciate most corporate nights out unless they involve a table and a decent menu, and can’t stand shouting above noise. Why do I go each year?, someone asked.

As I have said in an earlier article, I had some formal reasons for going – I sat on a panel for Thomson Reuters and moderated a video session for Digital Reef. The real value, however, lies in ad hoc and informal conversations. Within a few hours of arriving, for example, I had lunch with Amir Milo and Warwick Sharp of Equivio, a conversation with Herb Roitblat of OrcaTec, and an extended early-morning coffee with Howard Sklar of Recommind; those who followed the predictive coding furore of a few weeks ago will note that these companies were in the front line trenches of that energetic debate. I could, in theory at least, ring up any of them for a chat at any time but it is only at ILTA that there is an opportunity for these impromptu discussions.

So what?, you say. You bumped into all your mates and had a nice chat. How pleasant to be able to do that in a grand hotel somewhere hot and call it “work”. Well, it is enjoyable, but it has a serious purpose as well. This post is largely anecdotal and aimed at giving the flavour of the event in the hope of encouraging you to go next year.

Carrying messages

Gaylord AtriumThe advertised pitch for the eDisclosure Information Project is that I carry news and views about eDisclosure / eDiscovery between judges, lawyers, clients and those who supply into the market. Some of that is done by sitting on panels, taking part in webinars and other one-to-many exercises; sometimes it involves reporting things which deserve a wider audience such as Judge Peck’s speech at Carmel and those of Singapore’s Chief Justice, of Lord Justice Jackson, and of Senior Master Whitaker at the recent conference in Singapore. Sometimes, however, it lies in one-to-one conversations which you can’t have if you just sit at home writing blog posts.

Talking to Equivio’s Warwick Sharp is like standing beside an expert at a pheasant shoot. Up go the arguments, bang goes the gun, and down they come lifeless to the ground. My role is to be the labrador who retrieves them. Our lunch discussion on that first day was about the arguments advanced against using sophisticated technology like predictive coding – not specifically Equivio’s  product but any of the high-end software applications which take input from senior lawyers on a subset of documents and use it to make relevance and other decisions about the rest. The only plausible argument against the use of such applications, if you discount the self-interest of  lawyers who make their money from setting large teams to read all the documents, is that there is as yet no court decision which expressly approves of the use of such technology.

As Judge Peck noted at Carmel, there is no decision approving the use of keywords either, and both he and Master Whitaker in Singapore addressed this primary objection. Warwick Sharp instead rattled off a list of uses for predictive coding which needed no judicial approval – QA of your own results and a quick assessment of your opponents’ discovery were amongst them. I did not need to go to Nashville to hear this, but there were many who had gone there for just that purpose.  Later that day, I met in quick succession two people whose role within their firms required them to marshal just these kinds of arguments for the benefit of their lawyers, and I passed on what Warwick had said more or less verbatim. That alone justified being there, and you only really get that kind of opportunity at ILTA, where the mix of educational and social events, coupled with the informality and relative leisure which differentiates ILTA from the frantic pace of LegalTech, encourages this kind of discourse.

The venue

Gaylord CascadesThe Gaylord Opryland Resort covers 56 acres; it has 2881 guest rooms, 220 suites, an atrium 150 foot high and 4.5 acres in extent plus a second atrium of an acre which comfortably swallows two waterfalls, tropical gardens, a restaurant and a bar; the resort has 15 restaurants in all, a river, and several hundred thousand square feet of exhibit hall and conference facilities. There were people whom I knew to be there amongst the 1200 registered delegates at ILTA whom I did not see at all.

You wouldn’t find me checking in here for a holiday, but the Gaylord resorts are perfect for an event like this, provided that you don’t mind a 20 minute round trip between the conference centre and your room, as I had. The big events  - the opening party, the  big sessions and the final dinner – fitted comfortably into the cavernous rooms but there are plenty of quiet corners for conversation. Read the rest of this entry »


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