Barristers, Berlin and Bribery Act – an eDiscovery Compendium Part 2

As my last article explained, I am setting off on a sort of eDiscovery world tour thanks to a coincidence of invitations, each of which was too interesting to turn down. I keep a running list of things which I would like to write about, fed as much by Twitter as by things I am directly involved in. This post records, with the minimum of comment and in no particular order (and with few hyperlinks ‘cos I ain’t got time), the ones which come to hand as I pack my bags. There is a small reward, in the form of a bonus link, for those who make it to the end.

A talk to barristers at 3 Paper Buildings

I put this first, partly because that is where it belongs in the timeline, and partly because it points up two important things –  that the UK is no less important to me because I spend a lot of time abroad, and that the erosion of solicitors’ traditional work is perhaps closer to home than they imagine.

The introduction to 3 Paper Buildings came through Andrew Haslam, who had worked with a member of chambers on a case involving electronic documents. As we have done before, Andrew and I split the subject-matter to reflect our respective primary interests. I talked about the rules and about how astute and pre-emptive use of both judicial discretion and technology could cut down disclosure volumes. Technology is shifting the emphasis from rows of people reading documents to intelligent application of thought. Increasingly, in big cases, it is barristers who find themselves running case management conferences and engaging with the court. There is a real opportunity to use the CMC as a means of focusing on the client’s objective and on the court’s objective, and on how the combination of technology plus brain could achieve them within the rules. Andrew Haslam, in a carefully constructed presentation, took them through the classes of technology which exist, stressing that the “right” technology meant that which was right for this case. You do not necessarily need the really clever stuff, but you need to know that it exists and how it could be used. At the least, you need relationships with a couple of providers to whom you could turn.

Surreal, you say. Barristers don’t want to do discovery! Well, this lot got the point at once, not just for litigation, but in connection with regulatory and similar work in which they are engaged. We got some good discussions going, and positive feedback after over two hours of presentation. Anyway, it is no more surreal than the snow which blanketed Middle Temple Gardens and blew past the windows on a warm September afternoon – a Christmas commercial, apparently.

Predictive coding

I published a long article on 27 September, painstakingly picking apart the argument that predictive coding is somehow an unacceptable substitute for lawyerly involvement (it doesn’t purport to be) and the related one about judicial acceptance (how would you know if you have never looked at it?). A couple of days later, the ABA Journal published a crisp article called A New View of Review: Predictive Coding Vows to cut eDiscovery Drudgery. The article, and the comments collecting at its foot, should alert any lawyer (and judge, and client) to the way the wind is blowing.

If that were not enough, US Magistrate Judge Andrew Peck has written an article, published by Law Technology News, called Search, Forward whose message is captured in its closing paragraph:

Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help “secure the just, speedy, and inexpensive” (Fed. R. Civ. P. 1) determination of cases in our e-discovery world.

This is Judge Peck’s written version of his excellent speech at the Carmel Valley Retreat which I wrote up here. Keep a copy to hand, whichever jurisdiction you practice in, in case you come across an opponent or a judge (or, indeed, one of your own partners, or maybe your barrister) who mutters about defensibility. What are they defending, exactly, you might ask. I picture this line as one of those sandcastles on the beach, bound to crumble with the next wave or two.

Richard Susskind and the Legal Market “Endgame”

I have recently referred to Richard Susskind’s article on the Legal Futures website about the imminent implosion of the traditional law firm model. I mention it again because it is still being re-tweeted (most recently by the Mary Mack of ZyLAB and Jim Shook of EMC, both of whom have wide audiences) and will be read by the corporate clients, many of whom are indeed looking for better ways to get the job done, whatever the job may be.

In-house counsels’ views on the present law firm model are well captured by this article by Tim Bratton, GC at the FT.  Making millionaires out of law firm partners is not high on the list of ambitions for in-house counsel. Solicitors might get a clear (and not very flattering) view of themselves if they were to follow a few general counsel on Twitter. Find a young person around your office to show you what Twitter is. You will need a computer.

iCONECT adds remote data collection to sardonic comment

Litigation software company iCONECT announced last week that it has a new version of its review software designed to allow its customers to collect data out in the field. This is becoming an increasingly important part of the tool-set of those who must combine speed and economy with defensible collections.

The reference to sardonic comment comes from the frequent litigation digests which iCONECT produce and which are edited by Jeffrey Brandt with rather more good humour than most. The subscriptions page is here.

Creating efficiencies in your anti-corruption compliance program

Whilst the rest of us must be content with the self-publishing capabilities of blogs and Twitter, Recommind’s Howard Sklar aims higher. His article Creating Efficiencies in your Anti-Corruption Compliance Program was published on Forbes.com this week. It is all good, but the best practical takeaway comes towards the end:

Use your litigation eDiscovery software – designed to analyze emails and documents  to enhance your internal monitoring.  Use enterprise search technology to ensure the corporate left hand knows what the corporate right hand is doing.

Litigation software designed to uncover the smallest detail for discovery purposes lends itself very well to internal monitoring. Why not pick your highest-risk people, jurisdictions or lines of business and subject them to a periodic analysis using the same tools as you will need if that monitoring fails and you face and actual investigation?

The Western District Court of Pennsylvania elevates eDiscovery

I first heard about the Western District Court of Pennsylvania at the Masters Conference this time last year. Judge Joy Conti explained her approach to case management of eDiscovery which included asking counsel if they had had their last word on the subject and would be happy to be bound by what resulted. It was interesting, she said, how often they asked for a little more time for reflection. Judge Conti told us also about the role which the court took in “encouraging” parties to exchange useful information with each other about their respective clients’ data systems etc, whether any preservation issues arose and what search terms might be useful.

Reed Smith have now produced an interesting article explaining how this court has been developing its approach to eDiscovery. The ideas are familiar to those in the UK with involvement in the electronic documents questionnaire which forms part of the eDisclosure practice direction of last October.

Guidance for Judges

If I sweep up two different things under this heading, it is to save your time as well as mine. This is, after all, intended as a pointer for your weekend reading rather than deep analysis on my part – for now at least. In that spirit, you may care to refer to an article by Morgan Lewis with the heading Federal Circuit Unveils Model Order for eDiscovery in Patent Cases.

So far as I can see, some of the comment about this has overlooked those words “in patent cases” with the obvious narrowing of its scope as a result. Morgan Lewis, of course, make no such error and I am content to leave you with their thoughts without  adding my own. I will come back to this subject.

Meanwhile, and adding more to the assistance available to the poor sods who have to listen to this stuff, see an article called Sedona Conference Provide Guidance for Judges on the eDiscovery Daily Blog.

EDiscovery in Ireland

This is not only the subject of one of my forthcoming conferences but is covered by a survey launched this week by Ernst & Young. I have not yet had the chance to study this properly but will have done so before stepping on to the platform in Dublin next Thursday.

FCPA best practice from FTI Consulting and Fulbright & Jaworski

FTI and Fulbright & Jaworski know as much about FCPA investigations as anybody. Craig Earnshaw, London-based managing director of FTI Consulting, and Kelly Garrett Thorman of Fulbright’s are co-presenters of a webcast on 4 October whose subject is eDiscovery best practices for investigations. This article about it includes a link to the registration page.

Cowen Group survey shows plans for eDiscovery hiring

As I mentioned in my introductory article, David Cowen of the Cowen Group is a facilitator, along with Craig Ball and me, at the Nuix Exchange in Sydney in early October. This article reports on a recent Cowen Group survey of AMLaw 200 firms which suggests that eDiscovery hiring is on the increase.

Even without the benefit of such research, the tweets which race down my screen are including an increasing number of invitations to apply for jobs – AccessData, Recommind and CY4OR are amongst those which I have seen in the last couple of days.

Not yet at the bottom of the well

I have not picked up every subject which was on my list, but have reached the point where I choose between carrying on or catching my plane. I may be able to fill the gaps later (and add in the missing hyperlinks), but anticipate that there will be more than enough to write about at the series of events which I am about to attend.

The Bonus Link – Cheap Flights

I promised a small reward to those who got to the end of this article. The context is my preamble to my report on Legal Week’s Corporate Counsel Forum Europe in which I referred in less than flattering terms to those airlines whose final price bears little relation to the estimate which induced you to travel with them, and whose advertised facilities – the destination, for example – do not match what you find when you get there. I compared this to some of the estimates given by some solicitors.

It is not just the cheapskate airlines which do this. I, for example, will never willingly travel by Virgin Atlantic again after finding at the end of my transaction that I had to pay a whopping great credit charge fee on top of the advertised price. I daresay there was a warning about this, lost amidst the gaudy marketing crap, but I saw it only when I was so far into the transaction that I had run out of time to start again. Virgin compounded this by selling me a premium economy seat but putting me in a cabin whose leg-room was the same as I would have had if I had flown economy. Airline advertising is therefore a sore point, as indeed were my knees by the time I got back from Orlando.

The subject was admirably skewered by a British all-female British singing group called Fascinating Aida (“or, as we are known to our intimate circle, ‘Sweet FA’ “) in a song called Cheap Flights. The credit card scam is neatly skewered by these lines:

And then Begod they charged for using Visa which was drastic
For how the feck are you supposed to pay if not with fecking plastic?

It is the mismatch between the respectable appearance of the ladies and their words which adds value here. Do listen to the end, but those of a sensitive disposition may want to turn it off before reaching the trailer for another of their songs.

See you on the other side of whichever sea you live beyond.

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