A reminder that the blog now has a sister site

For those who missed my original post about this or who do not follow me on Twitter, I have set up a page on Google+ for short notes, mainly about eDiscovery/eDisclosure .

These lie part-way between blog posts and tweets, and may be expanded onto the blog in due course – a full blog post requires a day at my desk, and I am not getting many of those at the moment. This is no cause for complaint – talks to lawyers and meetings with sponsors are core activities – but it comes at a time when the eDiscovery / eDisclosure world is a constant stream of information worth capturing. The Google+ posts are a way of picking up and passing on things which I would otherwise miss.

Yesterday’s entries include a couple of references to an important speech on eDisclosure by Lord Justice Jackson, a pointer to a kCura webinar on computer assisted review and news of the SFO’s new hotline for whistleblowers who want to talk about fraud or bribery. The weekend’s entries covered a range of subjects from how general counsel measure (or more often do not measure) value and efficiency of efforts made on their behalf, a Singapore consultation paper on discovery reforms, a note about uniform data protection law in Europe, some live tweets from ZyLAB Universe 2011, and a cartoon about trying to sell war-winning solutions to people too busy fighting daily battles. There are also trailers for forthcoming articles about predictive coding case studies and for a webinar which I am recording this week with ZyLAB. I don’t know if harnessing Google’s own indexes made the difference, but there were 475 page views on the blog yesterday.

Last night I was one of the speakers at a meeting of the Franco British Lawyers Society at Pinsent Masons. The subject was the Bribery Act and, in my case, the eDiscovery implications which quickly shaded into suggestions about information governance. The other speakers were Barry Vitou of Pinsent Masons, Jean-Francois Denis of Gide and Hervé Chacornac of Siemens – good company to be in on a subject which crosses borders as the Bribery Act does.

Now it is back to London again for the rest of the day. This near-continuous run of away matches ends soon.

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Epiq Systems White Paper: From Start to Finish – what actually happens to my clients’ data?

Anyone describing their services to a prospective client has a limited bandwidth (measured in time, concentration and the amount of detail which can be imparted and absorbed) available to them and, in focusing on the primary features and benefits, often skips the practical matters which will arise. The builder quoting for your attic room will concentrate on the design and the materials, and not describe the months of dirty boots going up and down your stairs; your property lawyer will not go into details of packing, removals and services disconnection when describing the conveyancing process; the surgeon will spare you the gory details of scalpels and clamps which will be used in your impending operation.

This is not necessarily a matter of concealment – to the expert doing this sort of thing all the time these minutiae are inevitable, and describing them seems to add little to the client’s expectations. Much the same can happen when an eDiscovery provider is describing its services and software: the focus is on the business case, the functionality and the output, with the front end of the process reduced to terms of art like “preservation”, “custodian” and “processing” which do not necessarily mean to the audience what they mean to the vendor.

I come across this when I speak to law firms. Those who invite me in to talk to them have very often already seen more than one demonstration, and have varying degrees of understanding and acceptance of both the need and the benefits of engaging one of those whom they have seen . A recurring question, however, is “What actually happens to my clients’ data when I instruct a software and services provider?”. They envisage, perhaps, the day when they will ring up a client and advise them that the disclosure in their case should be managed electronically. “All right”, says the client, perhaps, “What happens now?”

The KPMG Preservation Order: it couldn’t happen here….I hope

In writing about the US case Pippins v KPMG (see KPMG Judge Kicks the Sisyphean Stone of Proportionality Back Down the Hill) I made a point of emphasising that “one must… be careful up to a point in commenting adversely on rules of another jurisdiction”. I also made it clear that my comments were not directed at the judge but at the rules as they have developed.

Mine was therefore a policy view rather than a taking of sides, a conclusion that if the Magistrate Judge was correct (as to which I have no informed view) then my outsider’s opinion of the legal context was that, as Dickens’ Mr Bumble put it, the law is an ass. My support for the position taken by the amici who have joined in the appeal was based more on sympathy with their broad propositions than with the facts of the case. I want them to to be right and to win because I entirely buy the idea that decisions like this will cause lawyers “in an over-abundance of caution [to] feel obligated to follow the broader standard preservation adopted by any court” as one of the briefs puts it.

As one might expect, the case has aroused strong views, none clearer than those expressed by Craig Ball in a forthright article called A Good Decision Brings Out the Bullies – a title which tells you which side Craig takes. His analysis takes the key facts, a less-than-complimentary examination of KPMG’s actions, the reasons in forensics and evidence terms why the hard drives which were the subject of the application ought to be preserved, and a sprinkling of references to the rules.

The briefest recital of the facts, for those who are starting here, is that a claim has been brought against KPMG by current and former associates who say they were deprived of overtime payments. KPMG chose to collect 2,500 hard drives used by potential claimants. This, they now say, is costing them significant sums and puts them at risk that the data thus preserved will become subject to legal holds in other cases.

eDiscovery Predictions for 2012 from Symantec and Clearwell

This is the time of year for predictions about the next twelve months. I tend to make mine aspirational, that is, I hope to encourage movement in the general direction of my predictions without necessarily being optimistic that they will come true.

Dean Gonsowski is eDiscovery counsel at Clearwell. Clearwell is now owned by Symantec and, if some of Dean’s predictions relate to information governance rather than pure eDiscovery, that is not just  for marketing reasons – the acquisition was itself a fulfilment of a generally-held view that eDiscovery would come to be seen as part of a continuum from document creation through archiving to the processes illustrated by the EDRM. One would have expected the subject to be on Dean’s predictions list even if he were not now part of Symantec.

As I have already recorded, Dean and I made a video together recently in Munich, and filled our time without getting onto questions about the future. We remedied that in a long phone call last week, and what follows includes my gloss on his predictions, not merely a bland recital of them.

Dean’s points came under ten headings which, he said, were given in no particular order.

1 Technology Assisted Review gains speed

Technology-Assisted Review, or TAR, has appeared from nowhere as the term de nos jours for the sophisticated technology which takes e.g. relevance input from senior lawyers or subject-matter experts to build a seed set and then applies the results across a bigger or the whole data set. Depending on who is talking, it may be called predictive coding, software-assisted review, predictive tagging or suggested coding, and both the underlying technology and the precise process varies from product to product. User acceptance has been slow, partly because of fears about defensibility, partly through misunderstandings of what it does or can be used for, partly because its validation depends on mathematical precision with which lawyers (being mostly arts graduates) do not understand, and partly because lawyers make a lot of money …oops, nearly said something tactless there (and this, I stress, is me talking, not Dean).

Dean Gonsowski believes that we are “on the cusp” of acceptance of this technology, and that we will see “an increased comfort level” from lawyers as we move into 2012. The fear, touted in a New York Times article of last March, that TAR will put lawyers out of work, will give way to an acceptance that manual review is simultaneously expensive and inaccurate, and lawyers will acquire new skills. They will “struggle with how to use it” to begin with, but will realise that there are several use cases, including many which do not involve judicial acceptance. US Magistrate Judge Andrew Peck’s recent article (free registration required) will be strongly influential in this regard.

New eDisclosure Information Project page on Google+ for short eDiscovery posts

Google has just launched Google+ Business Pages which, unlike the ordinary Google+ pages, allow you to have an identity as a business rather than only as an individual.

That distinction on its own is in fact fairly meaningless in my case, since I and the eDisclosure Information Project are the same thing in public-facing terms. The primary reason for starting the business page is that one can have a proper heading and some photographs at the top, and publish a URL, albeit a rather unfriendly one – mine is https://plus.google.com/101758229793623373564

You also stand a reasonable chance of being included in Google search results, although it is too early to say whether that works well.

Having a business identity does not lose the personal one used to sign up for Google+ in the first place, and you can switch between the two identities. That allows me to use them for different purposes.

The Google+ concept is, of course, a “social” one, designed to encourage sharing. Like many others, I have not yet found this terribly useful – I am not going to abandon Twitter and the 1000+ followers I have there, nor  am I going to duplicate every tweet in Google+ – they turn up automatically in LinkedIn anyway, and most people in my Google+ circles will already have seen the content before I can paste it into Google+.

Most of my written output, in word-count terms, goes into my blog. That is my primary platform and the home of most of my intellectual capital. In reputation terms, it is what I am known for, and in pure business terms its function is to attract as much traffic as possible for the subject of electronic disclosure / eDiscovery.

ZyLAB White Paper and Webinar: Bridging the Gap between Legal and IT

ZyLAB has published a white paper which I wrote with them called Bridging the Gap between Legal and IT.  It is to be followed by a webinar on 1 December when I will discuss the issues raised in the paper with ZyLAB’s Chief Strategy Officer Johannes Scholtes.

The theme of the paper is that eDiscovery is becoming a significant burden and threat to companies from a growing number of directions. Civil litigation demands are only part of the problem – regulatory demands, the need for internal investigations, and the threat of a Bribery Act prosecution are among the other triggers which may lead, and at very short notice, to a requirement for IT to identify, preserve and produce data. That data is not only growing in volume but comes in a wider range of forms – another recent ZyLAB paper explains how social media is growing in importance as a source of potentially discoverable information.

IT therefore finds itself responsible for something over which, in many companies, it has little control or power. The legal and compliance departments, as well as the business units, often have little idea of the practical scope and effect of a sudden eDiscovery demand; IT departments are often remote (and not just geographically) from those who have the business problems.

There is a role here for those who, like ZyLAB, supply software and services into companies. They are not only familiar with the problems and with the solutions, but they have been involved in similar projects with other companies and bring that experience to the exercise.

The White Paper and the webinar address these subjects. The paper can be downloaded from here and the registration page for the webinar is here.

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More on risk appetite as US and UK eDiscovery are compared

Recommind’s Howard Sklar was kind enough to comment on my blog post Assessing risk rather than trying to eliminate it in his post Risk Appetite: no thanks, I’m full on the InfoRiskAwareness site..

My article drew parallels between attitudes to general public risk and attitudes to eDiscovery in the UK and in the US. If Howard thought that I “woke up on the wrong side of the bed” on the morning that I wrote that article, what will he say about my even harsher and more specific article of Sunday about Strathclyde’s Fire and rescue service, whose officers allowed a woman to die because of what the Sheriff considered “fundamentalist adherence” to health and safety policies? The Sheriff’s Determination includes the same phrase as appeared in my article’s title about attempts to “eliminate risk”, and with much the same contempt.

I point you to Howard’s article mainly because of one sentence in it. Howard says:

It is here that Chris is absolutely right when he says that the UK rules are too permissive.

That statement really needs the addition of “when viewed through US eyes”, because I did not actually say that I believe the UK rules to be too permissive. What Howard says thereafter is the corollary to my view of the US system – he says that “the idea that there is no concept of legal hold [in the UK] flabbergasts US lawyers”. Flabber away, I say. It is not that we forgive the destruction of documents. My observation on the US system was that it has become “obsessed to the point of catatonia with eDiscovery risk”, with massive over-collection caused by a fear of sanctions which is not warranted by any sensible interpretation of the many cases on the subject.

I don’t mind, really, at least down to the point when US courts try and impose the same standards on the rest of us in cross-border eDiscovery – we just want to get on and have the matter resolved without expensive diversions which often seem to have no bearing on the issues being litigated. Deliberate conduct aimed at thwarting justice is punished here as well, as Rybak v Langbar International shows.

So what did I say which has been interpreted as a concession that “the UK rules are too permissive”? I made two references to UK disclosure. The first was:

The US in turn thinks that the UK approach to eDiscovery – to spoliation, the preservation and legal hold, and to the completeness of discovery – aims at a laughably low standard compared with the stringent requirements of US discovery.

That is a report, not a view, and certainly not my view. There is much to complain of in the way UK courts and lawyers manage eDiscovery, and the rules themselves have scope for improvement, but you won’t catch me knocking the standard set by the UK rules and cases. I don’t claim that the process is perfect, but I will stick with it in the face of any threat that we might go the American way.

My second reference to UK eDisclosure was this::

It is probable that UK eDisclosure questions will be scrutinised sooner than has been the case hitherto, but the context will, I hope, be judge-led initiatives to weigh cost against scope rather than mere alleged failure to comply with formal requirements.

So yes, I am urging closer attention to the scope of eDisclosure in the UK, but am aiming for narrower and more proportionate disclosure as a result, not an aspiration towards US legal hold standards. If UK judges are too “permissive”, it is because they too often permit excessive disclosure, not because they condone inadequacy.

If one has to choose between the risk that documents may sometimes be missing for whatever reason and the risk of US-style preservation and legal hold battles, I will risk the occasional oversight. The law as set out in Rybak is all the comfort I need that misconduct will not go unpunished.

What Howard and I are illustrating here is something I say when speaking to audiences in mainland Europe – a line in one of my slides reads “Each finds the other’s position literally incomprehensible”. Philip Favro of Symantec has also made observations on things I have said about UK-US differences. I will come to them shortly.

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Equivio adds Applied Discovery, LDM Global and others to a growing list

It can be quite difficult keeping up with those who sponsor the eDisclosure Information Project, quite apart from the wider eDiscovery/eDisclosure market. Some of them seem to assume that I pick up news by some magical process; others broadcast little because they are just getting on with an increasing flow of work; yet others have so much news that it is hard to keep up with them. In parallel with market news comes an ever-denser flow of information and discussion about rules and cases, plus thoughtful analysis of the directions we should be going in to improve the eDiscovery process. It all gets filtered at this end anyway, not so much by my subjective view of what is important but because I feel I owe you more than merely copying and pasting press releases; that inevitably reduces the number of articles in a week, even without the interruption of six weeks’ near-continuous travel such as I have just completed.

Equivio sends out a regular update and keeps its press releases in good order on its website – perhaps this is what one should expect from a company which specialises in making it easy to find the information you actually want. Equivio also keeps what it calls an Installed Base page – the “growing list” referred to in my title. LDM Global similarly keeps me well informed, and nobody keeps up a better flow of information, both about its own activities and about the wider eDiscovery world, than Applied Discovery.

For today’s purposes, Equivio provides the connection between these very different companies. Equivio’s Relevance product is its contribution to the predictive coding, or Technology Assisted Review, market which is as significant in discussions about rules and procedure as it is in pure market terms. I will not stop here to explain why this technology, in its various forms from a growing number of providers, is exciting debate – I write about it a lot, and an article called Search, Forward by US Magistrate Judge Andrew Peck (free registration required) suffices to explain why it is important (type the word “predictive” into the search box opposite for my own heavily hyperlinked articles on the subject).

Equivio was producing the tools to identify and eliminate duplicative and redundant data long before Equivio>Relevance was born, and was already well-known for its near-duplicate and e-mail threading software. These remain critical components in accelerating the review process by grouping together documents with common characteristics so that they can be reviewed together and, where appropriate, tagged en bloc. You do not need great technical knowledge as a lawyer conducting document review to appreciate the value of putting under one hand all documents whose content is very similar or which form part of the same e-mail thread.

Fundamentalist adherence to Health and Safety in Strathclyde allows woman to die

There is no eDiscovery in this post, although it picks up on my article of 21 October called Assessing risk rather than trying to eliminate it. That drew parallels between attitudes to public safety in the UK and to eDiscovery in the US; the UK suffers, I said, from a “a growing army of jobsworths with clipboards instead of brains” imposing restrictions in purported compliance with the 1974 Health and Safety at Work Act. I quoted from a government report which spoke disparagingly of “the enthusiasm with which often unqualified health and safety consultants have tried to eliminate all risk”, and from a comment of the Health and Safety Executive who complained that “health and safety is being used by too many people as a convenient excuse to hide behind”.

I referred specifically to cases involving the emergency services which, I said, “make particularly good examples because, in each case, a real benefit is lost in pursuit of some petty formal requirement imposed by some whining little runt with too much power relative to his or her brain”. People’s ability to make judgements for themselves was eroded, I said, by officials who were “too stupid to make proper risk assessments” and who had “a strong personal interest in the extension of a culture in which more jobs are created for people like them”.

I find some justification of what I said about the emergency services after an inquest last week found that the Strathclyde rescue services left a woman to die rather than break their health and safety rules.

I have to refer you to the Guardian article about this because of the Times’ paywall, although reading both of them has been illuminating for reasons quite distinct from the story itself, something to which I will return. The Sheriff’s Determination is here.

In summary, a woman fell down a mine shaft in the dark. She was seriously injured, with a collapsed lung, broken ribs and a broken sternum. Her death, however, was caused by exposure as a result of a six hour wait. At the centre of the delay is some equipment which could have been used to save her. The force’s regulations, however, barred them from using this equipment on the public, only for themselves.

Tactical Swearing to Close Down Pointless Discussion

I am always happy to get involved in debates about the best way of dealing with eDiscovery problems. The following tips may be helpful:

• Pretty well every supplier in this market has something less than complimentary to say about pretty well every other supplier. I have heard it all before, and my amiable smile and occasional nods should not be understood as meaning that I am taking any notice.
• Justice (as in “Justice demands that courts should be aware…”) is not, alas, an absolute, but depends on the availability of proportionate resources – a justice you cannot afford is no justice. Justice as an abstract does not have a budget.
• The market is pretty good at differentiating between things which work and things which do not.
• Increasing the volume does nothing to enhance the argument.
• The least I hope for if I take part in such a discussion (or any other discussion, come to that) is that I will be permitted to get to the end of my sentences in reply.

I had not heard the expression “tactical swearing” before, but it describes perfectly my escape hatch when all other means of ending the conversation fail to work. When this usually polite gentleman resorts to the F word as a conversational gambit, you know that you have lost his attention.

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IQPC Munich eDiscovery themes recur around the world

I was not sorry when my plane’s wheels touched down at Heathrow on my return from IQPC’s Information Retention and eDiscovery Exchange in Munich on Wednesday night, bringing to an end 28,000 miles of eDiscovery travel in six weeks. A few hours later, I was on my way to London to talk to a law firm about the UK eDisclosure Practice Direction in the company of Nigel Murray of Huron Legal – the e-Disclosure Information Project back on home turf. Meanwhile, US Magistrate Judge David Waxse, Judge Herbert Dixon and Jason Baron were all on their way from Munich to Washington for the Georgetown Advanced eDiscovery Institute. Within hours of my saying goodbye to Judge Waxse in Munich, tweets started rolling up my screen reporting on his contributions to a judicial panel at Georgetown.

The Problems and the Players

E-Discovery touches a lot of corners. It has multiple players: there are the companies whose data must be found and produced for court proceedings, for a regulatory investigation or for internal purposes, and within the companies are multiple duties and responsibilities which are not necessarily aligned. We have the lawyers who advise them, all too often reactively rather than in anticipation of problems. There are the judges and regulators who manage proceedings and who have an interest in efficient and proportionate outcomes. Lastly, there are the suppliers whose technology and consultancy helps address the problems. eDiscovery has many facets – an ever-wider range of data sources and types, matters of budget and reputation, and overlays of privacy and HR; the issues arise in very similar form in many different jurisdictions.

Conferences like IQPC’s Munich event provide an opportunity for all these people to discuss the problems and the solutions in the sessions, in prearranged one-to-one meetings and in less formal gatherings in bars and restaurants. One must pay a particular tribute to the two US judges mentioned above, Judge Waxse and Judge Dixon, and to the UK’s HHJ Simon Brown QC, all of whom emphasised that they came to learn as well as to speak about the issues which face court users.

Welcome to Munich

IQPC’s European events seem to get more than their fair share of external complications. Two years ago, the ash cloud prevented the attendance of several delegates, speakers and sponsors in Brussels; last year we were nearly snowed in in Munich; this year fog caused delays and, for some, re-routing via Stuttgart. Most of us got there in the end. The venue was the Kempinski Hotel Airport Munich,  a short walk from the terminals, and nothing at all like the picture which the dread words “airport hotel” usually imply. It  is a stylish place, with a big attractive bedrooms, good food, a convenient set of conference rooms and a bar which seemed to have no closing time.

I inevitably come across the occasional minor problem on my travels – screaming brats on planes, setting off without my passport, losing my luggage, or not being able to find a decent cup of coffee or somewhere to smoke. This is the first time, however, that I have heard the receptionist say “We have no booking in that name”, followed by “…and we have a big conference going on” (to get the full flavour of this, you need to imagine that it is very late at night, with cold fog swirling around what may be the only accommodation for miles). Fortunately, they found me a room. The coolness of my reception was washed away by the fact that the bar was full of the agreeable people whom one meets at many conferences.

Guidance Software adds Data Reuse Feature to EnCase eDiscovery

There are two reasons for referring you to the latest additions to Guidance Software’s EnCase eDiscovery. The first is the addition of functionality to identify and reuse data which has already been collected, allowing searches of data collected for previous litigation or investigations. The second is the video which Guidance has released to explain the new functionality, a model of simplicity and clarity.

EnCase eDiscovery is Guidance Software’s flagship application for network collection of data from across all or any of a company’s data sources. It has moved on from mere collection (not that collection is trivial) to include legal hold, first-pass review, pre-collection analytics and other tools to enable decisions to be made quickly and early in the litigation or investigation. The reality for many companies is that the same custodians and the same time-frames recur in multiple cases – however wide or narrow the definition of a “key player” (itself an open question as a result of the KPMG case) the relevant decision-making and information-flow in most companies lies in relatively few hands. Companies therefore find themselves collecting the same data over and over again.

The data reuse feature is designed to minimise this. However efficient a collection is in terms of network traffic (and Guidance prides itself on this) the ability to make use of existing stores cuts down the traffic and speeds up collections, particularly from mobile workers. I will demonstrate my own commitment to data reuse by pointing you to an article about the new feature by Evan Koblentz at LTN.

Guidance Software has been revamping its website which is now one of the best, with simple navigation to the main headings, clear divisions between different types of information and an understated colour scheme which catches the eye precisely because it does not scream for attention. This extends to the video which Guidance has released about the new data reuse feature, whose simple illustrations (backed by a sober narrative from Russ Gould, Director of Product Marketing) convey so much more than the breathless excitement endemic in most American marketing materials.

I was present at the meeting of Guidance Software’s Strategic Advisory Board when this development was first discussed and, as with other recent developments from the company, it is interesting to trace a new feature from its origins in user requests through to release.

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KPMG Judge Kicks the Sisyphean Stone of Proportionality Back Down the Hill

Those of us who think that the US Federal Rules of Civil Procedure relating to preservation are utterly bonkers get powerful reinforcement from a case brought against KPMG in the Southern District of New York. The plaintiffs are described as “entry-level auditors” and their claim is for overtime payments. A US Magistrate Judge has ordered that KPMG must preserve the hard drives of computers used by anyone who might join in the action. The Chamber of Commerce has filed an amicus brief, as have the Washington Legal Foundation and the International Association of Defence Counsel, asserting between them (I summarise) that the order is both wrongly made and “profoundly significant” (and not in a good way) for businesses.

An article by Alison Frankel summarises the issues and gives links to both amicus briefs and to the order.

One must, of course, be careful up to a point in commenting adversely on the rules of another jurisdiction. I am careful also to say that it is the rules and case law as they have developed which are “bonkers”, rather than the judge. The gist of the amicus briefs is that findings like this exacerbate an already disproportionate and over-expensive situation. I have recently written about the differences between the US and UK rules on this subject and am about to do so again in response to thoughtful comments made on my articles by Howard Sklar of Recommind and Philip Favro of Symantec. For today’s purposes, I will avoid contention (to the extent that the description “bonkers” can be seen as non-contentious) and merely point you to the story.

I am helped in this by the succinct and clear form of the amicus briefs. The WLF and IADC brief makes two points. The first is effectively a proportionality point whose core is “that the decision of the Magistrate Judge, by condoning broad ESI preservation orders without regard to their cost, will skew the outcome of civil litigation by (for all practical purposes) forcing defendants to enter into settlements as a less expensive alternative to complying with preservation orders”. The second challenges the judge’s finding that every former employee who might join in the action qualified as a “key player” whose hard drives must be preserved – “such a broad definition of a “key player” is unprecedented; amici are concerned that acceptance of that definition in the class action context will lead to an exponential increase in discovery costs for class action defendants.”

The first of these has deep implications because “any economically rational defendant would consider settling the litigation rather than incurring such a large discovery expense”. This, amici say, is permitting the use of procedural rules to alter substantive rights, which was not the intention of Congress. To me, who repeatedly bangs on about the “overriding objective” in the UK rules and the “just, speedy and inexpensive” equivalent in FRCP Rule 1, such an order is self-evidently disproportionate to any perceived risk of injustice to the plaintiff’s and (by almost inevitable corollary) represents injustice to the defendants. The factual question as to the definition of “key players”, with its analysis of what was said about them by Judge Scheindlin in Zubulake, is also interesting to those of us who urge an intelligent focus on what really matters in place of a grapeshot approach to preservation.

First Advantage to speak at Litigation Summit in Frankfurt 23-24 November

By the end of next week, I will have spoken at four eDiscovery events in Germany during the year, a four-fold increase on any previous year. I do not take this personally, as it were – there is growing interest in eDiscovery, as well as in the wider subjects of dispute resolution and regulation. There is a Litigation Summit coming up in Frankfurt on 23 to 24 November which I had not spotted until First Advantage Litigation Consulting drew it to my attention.

Michael Becker, Regional Director of Litigation at First Advantage Litigation Consulting is one of the speakers. He says:

“The rise in cross-border trade has been accompanied by an increase in cross-border litigation, arbitration and regulatory investigations. The underlying causes of these disputes are, broadly speaking, the same as they have always been, but with an added layer of complexity as companies now litigate and respond to regulatory matters in a variety of jurisdictions, with varying legal frameworks and cultural nuances. Understanding your exposure can help minimise risks and there are a lot of proactive measures that legal professionals can take to ensure that they are better prepared to deal with such matters.”

This puts it very well. To judge by the speaker list, this will be a high-level conference aimed at those who are already alert to the problems which arise when “varying legal frameworks and cultural nuances” collide. They will want practical advice on how to deal with the problems, which First Advantage is well able to give them.

Leaving aside the sophisticated players on the speaker list, EU audiences are in a sense a mirror of those to whom I speak in the US. US companies and lawyers have a vague sense that electronic discovery is more restrictive in the EU but gasp at the limitations which data protection, and privacy in particular, impose on their God-given right to collect everything. EU audiences have a similarly ill-defined understanding that US discovery is an intrusive and expensive activity to be repelled or (preferably) ignored.

Neither position is tenable. There are certainly cases where it is impossible to comply with the rules in one jurisdiction without breaching those of the other; that is a commercial reality which parties are better off knowing about in advance then discovering in the middle of litigation or an investigation. There are many more cases where transparency and the “proactive measures” to which Michael Becker refers can mitigate the risks and help find a way through the conflicting obligations.

Conferences like this are a good way to find out what can be done, both from companies who face these problems weekly and from those who advise them. I will not be at this one (my last foreign trip of the year is next week) but I look forward to hearing what is said.

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Legal Support Network UK e-Discovery Briefing Paper collects expert views

The UK-based Legal Support Network has just published an interesting briefing paper about eDisclosure / eDiscovery, opening with an observation on the difference, or absence of difference, between those two terms, kick-started by Jonathan Maas of Ernst & Young.

For practical purposes, there is no difference. The long-established process of “Discovery” was renamed “Disclosure” in 1999 for reasons which made no sense at the time beyond the optimistic notion, endemic at the time, that you could improve something by changing its name. The alleged benefit, the shift of focus to what you gave to the other side, was meaningless then and has become more so as the emphasis has moved, under pressure from the volumes, to the scope of search. The terminology change also failed to anticipate that this would become a subject which crossed borders both intellectually and practically, leaving England & Wales with a confusingly different term for the same process. There is quite enough to misunderstand without frigging around with the established terminology.

My own approach, for what it is worth, is that if one is referring to the Rules themselves then one should use the terminology of the Rules but that the term “Discovery” is the proper one for the process. In practice, I generally do what I have done in my opening paragraph and use them both.

The opening article is an interview with Jonathan Maas, rightly described as “a bit of a legend” in litigation support. Jonathan was already well-known in the nascent field when I began, and that is going back a bit. You do not need me to paraphrase the article for you, but the main point, to my eye, lies in the sentences “[Lawyers] don’t need to know how to do it, just that it needs to be done.” and “law firms need to know these things can be done, to know the benefits and to be able to stand tall with their decisions…”. You cannot “stand tall” if you do not understand what you are talking about.

Supper in Singapore, breakfast in Berlin, luggage in Limbo

04:58am at Heathrow’s Terminal 3. All going to plan so far – the plan being to speak at InnoXcell’s eDiscovery conference in Singapore on Monday, to attend its closing party, and then to moderate a Tuesday session at EMC²’s Momentum Berlin 2011 before moving on to Paris to give another talk two days later. Some would say that this is an absurd way of life. Maybe, but I do not have to commute every morning on a crowded train run by incompetent idiots nor sit in traffic jams to go to work. The price is the occasional journey like this.

Planning this kind of travel is no different from managing any other project. It has a series of waypoints (the events); one or more conditions must be fulfilled before a subsequent stage can begin (you can’t set off for the airport before your panel session has ended for example); there are resourcing implications (of cash and energy);  there are semi-informed gambles (do I pay for an upgrade or will they give me one anyway?) and risk assessments (will this plane land in time for me to catch that one?).

On the whole you can face most reasonably forseeable contingencies with a handful of things – a passport, at least two credit/debit cards with deep limits, a smart phone, whatever laptop / iPad / cabling components keep you working, and cloud-based access to speaking materials, to contact lists and to the calendar which tells you which country comes next, with flight numbers, hotel references etc. You can lose or forget everything else – a theory I was about to test as I stood by the dawn carousel at Terminal 3, with two hours to go till the next flight out of Terminal 5.