Social media and electronic disclosure are two important subjects which many companies and their lawyers would rather ignore – their very names are enough to strike apathy into many hearts. eDisclosure provider CY4OR has joined forces with others to promote awareness about these two subjects, which can often become inter-related, and at short notice.
Some subjects do not get the attention they deserve, their very names causing lawyers and their clients to change the subject. In any context, the labels can have an alienating effect or can conceal what is really meant. A former director of the Imperial War Museum once said that he had to sell the hardest three words in the world, though he went on to achieve just that. Twenty or more years ago, British railway companies, as uselessly incompetent then as now, decided that calling their passengers “customers” would stand substitute for any improvement in the service. The UK Civil Procedure rule-makers decided in 1999 that relabelling “discovery” and calling it “disclosure” would somehow make the process better.
Labels can arouse derision (“politician”), fear (“hoody”), contempt (“chav”) and so on, encouraging the suspension of thought as to what is embraced by these terms.
Sometimes, labels simply become affixed to a subject or category without direction or decision, in the way that “social media” has stuck to a range of mechanisms which allow people to communicate. Like the smooth green surfaces on Dartmoor which conceal deep quagmires, they are traps for the unwary. Read the rest of this entry »
Here is another of of the periodic lists of the short posts about eDisclosure and eDiscovery which go on my Google Plus page. This is in part a place to put short posts which link to things which might otherwise be missed, each with a short comment from me.
There is a secondary purpose: whilst each such article and link must have its own value, they also serve a valuable SEO (Search Engine Optimisation) purpose. Links from there back to here reinforce the SEO of this Blog. Links from here – by which I mean the entries on these occasional index pages – are ranking high in Google searches after a day or two.
I have been playing catch-up after a bad (or good depending on your viewpoint) run of videos and webinars which means that my formal writing schedule has slipped a bit and that I have a large stockpile of interesting links. The list below is a selection of things which came my way in the last week.
I was sorry not to make it to Lord Justice Jackson’s speech to the Society for Computers & Law this week. Someone will doubtless write a full report in due course, but for now the Law Society Gazette brings us a summary under the heading Jackson warns of compulsory electronic era.
Most of what is listed in the article relates to the provision of IT services by the courts which lawyers will be required to use, including compliance monitoring requiring parties to tick boxes to show that they have achieved milestones required by the rules or by court orders. There will also be a form for completing budgets which will presumably take account of the feedback received from the form already in use.
We will have to wait and see what is meant by the “development of systems to manage the disclosure of documents”. Disclosure is an obligation which falls on the parties, who can choose from a wide range of software applications according to taste and budget to help them cull the dross and prioritise the rest for review and subsequent exchange. I can see immense value in a court-led system for holding the conjoined (and de-duplicated) disclosure of both parties after exchange or, at least, that part of it which goes into the equivalent of the conventional trial bundle or which is the subject of an application before the court. I am unconvinced that the court has a role in hosting (as opposed to managing) documents at any stage prior to this.
Civil servants and user-facing databases have not made for happy combinations in the past, as anyone who has to grapple with the online presence of HM Revenue and Customs will testify. I recently had to fill in a VAT form which one could only access if one knew its form number; it did not open on a Mac, had no provision for saving the data either locally or at HMRC and, when printed, would have used half a pint of green ink. It was invented, I decided, by a committee of accountants, tax inspectors and geeks with no human involvement at all. Let us hope that the Ministry of Justice involves real live users when devising its systems (and, perhaps, takes some advice on the terms of contract with its providers).
That much is beyond the control of Lord Justice Jackson. We can be in no doubt, however, that those things which are within his power will happen. As with eDisclosure itself, the technology is secondary to the process, and all the fancy forms and electronic box-ticking will not help if judges and those who appear before them do not take seriously their shared obligation to fulfil the overriding objective. That requires active management by judges as well as project management by lawyers; both have hitherto felt themselves rather above that sort of thing.
The collision between US discovery requirements and EU privacy and data protection laws is a long-running story of mutual incomprehension on which the formal conflict of laws is merely an overlay. US courts and regulators expect every last document to be produced according to a test of “relevance” which is cast as widely as possible, unconstrained (to European eyes, at least) by any sense of proportionality or necessity, even before you reach privacy, data protection and specific restrictions such as French blocking statutes.
There is a yet deeper layer of mutual antipathy, at some levels at least, between France and the US, derived in part from differing recollections of the country’s respective contributions to the outcome of the Second World War, and to the position taken by France in various subsequent conflicts including their attitude to NATO during the Cold War, the bombing of Libya in 1986 and, most recently, the invasion of Iraq. Given the matters of high diplomatic importance which give rise to this US picture of the French, it is perhaps curious that the American view should find its most eloquent expression in words uttered by Groundskeeper Willie in a 1995 episode of The Simpsons; forced to multitask as a French teacher, he hailed his class with “Bonjour, you cheese-eating surrender monkeys.” The expression caught on, exacerbating the idea that the French may talk a lot but rarely defend their position. This extends, in US eyes, to the enforcement of their Blocking Statute. Read the rest of this entry »
Proof Finder 2 is a limited edition version of Nuix’s investigations and eDiscovery software tool which, in an imaginative exercise, the company is selling for $100 per licence per year. It has all the functionality of the full product, subject to a ceiling of 15GB per case. This second Proof Finder wave also includes the new Nuix Visual Analytics.
This initiative caught the eye not just because of the extremely rare opportunity to use top rank eDiscovery software at little cost, but because all the proceeds are to go to a charity – Room to Read, which supports education and literacy in the developing world by making books and reading skills available to those who would otherwise do without. The first Proof Finder release raised $35,000 which will be used to build a new school in Nepal.
Ideas like this warrant an equally imaginative approach to marketing them. Consistent with this, Nuix has produced a video which simultaneously explains the Proof Finder concept, tells you about Room to Read and illustrates Proof Finder itself to give potential users an idea of what they will see and what they will be able to do with their copy of Proof Finder.
Proof Finder 2 is backed by training, support and a range of other things designed to make it easy to learn how to use the software. That ease of use begins with a simple way of paying your $100 and getting hold of your copy.
I took part in a video webinar with LexisNexis this week, part of their rolling programme of Butterworth’s Dispute Resolution webinars.
The key fact which I want to put right at the top of this article is that 2,340 viewers from 85 firms registered to watch this webinar, either live or by downloading it across the year. There is the CPD bait and, no doubt, law firm training supremos go round with whips to compel attendance, but this is tremendous reach, and an indicator of the subject’s importance.
The session was chaired, as always, by Professor Dominic Regan. My subject was disclosure (with and without an “e” at the beginning), and barrister Shantanu Majumdar of Radcliffe Chambers covered privilege as he did for the same event last year. Privilege is a subject which needs a light touch and rarely gets it – when it comes up at litigation conferences, I usually go out and have a smoke, check my e-mails and make my calls, and this is difficult when you are shut up in a basement in front of a camera. Shantanu Majumdar, uniquely in my experience, makes the subject interesting.
Dominic is a good chairman – he comes across more as a genial host who has invited a couple of mates round to talk about things which interest them, without diminishing at all the seriousness of the subject-matter or the importance of the content. LexisNexis have much improved the studio, possibly as a result of my complaint last year that I had to look down and left to see the slides and up and to the right to look at the camera. The slides are now immediately under the camera, which makes engagement rather easier. Furthermore, the remote-control does actually move the slides when you click it. Read the rest of this entry »
Here are links to some of my recent Google+ posts. These are short posts relating (usually) to eDisclosure / eDiscovery whose main purpose is to draw attention to articles and other things of interest which I come across. I put them here in batches, excluding those which link back to posts which you will have seen here anyway.
I cannot remember when I last read a judgment whose subject matter included questions about whether certain documents could be said to be in the “control” of another for the purposes of disclosure. Two such judgments have come my way today.
This was not the central issue in Phaestos Ltd & Anor v Ho [2012] EWHC 668 (TCC) (16 March 2012), which I wrote about here, but arguments about the control of documents were one of the reasons for the disclosure delays which were the subject of the judgment. The judge in that case ordered that a witness statement be made supporting the contention that certain documents were not in the control of the party giving disclosure.
North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11 (18 January 2012) is a part one of those long-running sagas resembling War and Peace, both in its narrative spread and in its country of origin. More than one judgment turns up when you search for the names of the parties. My link is to a Court of Appeal judgment in which, on the facts before them, the court upheld the judge’s conclusion that documents in the hands of a trust remained in the control of the Appellants and were therefore liable to be produced.
The court was at pains to emphasise that these arguments appear in many guises, including those relating to the separate identity of a limited company as well as to that of a trust. It was not “either necessary or possible to give a cut and dried answer to the question whether and when a court may make an order” of the kind sought, and “in deciding whether to order disclosure, a court may have to balance competing interests of different beneficiaries, the trustees and third parties. Disclosure may have to be limited and safeguards may have to be put in place.”
Jack Bond, litigation support specialist at Dewey & LeBoeuf in London is organising a charity Quiz Night on 3 May in support of The Children’s Trust and in memory of his daughter, Sarah.
He is getting together teams in tables of six from people in firms, companies and service providers whose work involves litigation support, eDisclosure, translation and the like. Those booked in already include providers including:
Clearwell
Control Risks
CY4OR
DLR Legal
Epiq
Ernst & Young
First Advantage
FTI
Geotext
Millnet
Transperfect
Unified
By coincidence, we have a second UK judgment in a few days which ends with indemnity costs being paid by a party for failing to comply with its disclosure obligations. Mr Justice Akenhead’s judgment in Phaestos Ltd & Anor v Ho [2012] EWHC 668 (TCC) (16 March 2012) begins with this:
This revised case management hearing was fixed on Wednesday for an hour-and-a-half, starting at 8.30 in the morning. It was listed for an hour-and-a-half and the purpose was, as I made clear on Wednesday, that the Court should finally deal with, and dispose of, issues relating to the scope of electronic disclosure on the part of the claimants, primarily. It is clear that substantive agreement on the defendants’ electronic disclosure had been reached.
…and it ends with this:
It is agreed that the costs of, and occasioned by, the claimants’ application earlier today should be borne by the claimants in any event. The only issue is whether it should be on an indemnity basis. I am wholly satisfied that this is an appropriate case for an indemnity basis. The court has made it clear, on at least two previous occasions, and probably more, that the question of electronic disclosure and any issues arising out of it were to be dealt with at the latest by the end of this particular week, preferably earlier. Earlier orders talked about getting it resolved on or by 5th March 2012 ….The claimants and their solicitors, collectively, have had more than enough time to “get their act together” on this… Read the rest of this entry »
If you are not yet familiar with the plaintiffs’ arguments about predictive coding (I use the word “about” in its broadest sense, since much of the argument appears to be about some completely different agenda) in Da Silva Moore v. Publicis Groupe & MSL Group, Rob Robinson has helpfully gathered together the formal documents in one place.
In my 7 March article Judge Peck’s Predictive Coding Opinion – Reporting the Reaction, I picked out points made by various of the better-known commentators on the then state of play in the Da Silva Moore Predictive Coding dispute. I ended that article by saying “I can think of two or three commentators, so far silent, whose views will be worth having.” Today brings us the expected article from Herb Roitblat, CTO and Chief Scientist for OrcaTec, one of those whose opinion I had in mind.
My decision to stop reporting every additional layer of comment on Judge Peck’s Da Silva Moore Opinion (see Closing down the Da Silva Moore discussion for now) was made in part because of the diminishing returns we were getting from the focus on this one case, and partly because it was becoming clouded with agendas remote from the technology and from the wider issues addressed by Judge Peck in his Opinion. There is room, however, for some straight up-and-down discussion which might otherwise be crowded out.
An example of this is an article in Metropolitan Corporate Counsel headed Can Technology-Assisted Review Coexist with Strategic Search? This is an interview with Amanda Jones, Senior Research Consultant with Xerox Litigation Services. As its heading implies, the article reminds us that the high-end search tools known variously as predictive coding, technology assisted review et al, is but one of the search tools which are available to help with the identification of the documents which matter and the relegation of those which matter less or which do not matter at all. Read the rest of this entry »
The terms of the plaintiff’s Objections to Judge Peck’s predictive coding opinion in Da Silva Moore v Publicis Groupe deprive the commentators of anything useful to say. It is not merely that the decision goes into limbo pending the District Judge’s ruling, but that serious discussion has been drowned by things which have nothing to do with developments of law, practice and procedure, still less with proportionate justice, and which have not a lot to do with the case itself.
It is not that comment has dried up completely – we’re still seeing sober updates from people whose judgment can be trusted, like eDiscovery Journal and Katey Wood. The only wholly new intervention of value comes in an article from Sandra Serkes at Valora who recognises the common interest of everyone concerned in a rational outcome. My use of the word “rational” connotes nothing partisan – it is the collective good which concerns me, not the fate of either party in the case itself.
There seems to be a parallel agenda running in some quarters, remote from the case itself, with motivation one can only guess at.
I am, anyway, too busy banging my head against the desk after reading the Declaration of the plaintiff’s expert witness in support of their objection. How have we come to this? I give no view on the propriety of the Objection or on the content of the Declaration. I am just wondering what it has all got to do with the “just, speedy and inexpensive” requirement of Rule 1 of the Federal Rules of Civil Procedure, with proportionality, with the obligation of cooperation imposed by the rules and expressly required by the judge, and with the evidence on which this case will turn.
Feedback suggests that my use of the word “demotic” requires some explanation. Strictly, it is an adjective meaning popular or vulgar. It has acquired the informal status of a noun referring to the language or habits of the horny-handed sons of toil. One of the hallmarks of Anglo-Saxon is short, stubby words which make their point without frills or any attempt at elegance, and my headline therefore referred to the sort of language you might expect from a sailor at closing time at a bar in Leith. I have muttered a few more words of that kind on this subject over recent days.
Of the 112 articles sitting in my “must read” folder, many relate to Da Silva Moore. With one or two exceptions with longer-term value, I propose to archive them all until there is something new and useful to say about this case. There is plenty else to write about.
First Advantage Litigation Consulting (FADV) has announced the acquisition of London based DLR Legal, a global managed review services business. First Advantage already has a strong practice in managing projects involving multiple jurisdictions and multiple languages, and the acquisition of a document review company with specialist language skills and cross-border experience strengthens that practice considerably.
DLR Legal is based in London and Brussels, and was established specifically as a network of multilingual lawyers and paralegals. There is more to this than translation and review – DLR Legal is also able to bring people with appropriate jurisdictional legal qualifications to the project in hand. This has obvious benefits, not merely for relevance assessments but for the crafting of specific searches and for legal analysis where this is required.
DLR Legal emphasises that it is not a recruitment agency which rounds up teams on demand if it can find them. Instead, it spends a considerable amount of time locating, pre-screening, pre-interviewing and testing candidates before a project comes up.
I spoke to Drew Macaulay, Director of Business Development at First Advantage, who said that DLR Legal’s ability to field large teams at short notice was the factor which originally caught First Advantage’s attention when they needed to assemble a German-speaking team in London at short notice. It took DLR Legal one weekend plus one working day, Drew said, to have 25 German-speaking lawyers ready to start work in London. It was not just the speed which counted, Drew added – the quality of their output was very high. The idea of an acquisition grew from there.
First Advantage has its own hosted document review platform, Global RPM, which has strong multilingual capabilities in addition to the other processing, analytical and workflow capabilities expected of modern eDiscovery applications. The strengthened managed review services resulting from the DLR Legal acquisition allows First Advantage to offer multi-jurisdictional, multi-lingual discovery services whether or not the data is to be processed and/or reviewed in its own platform. Clients may choose to use FADV for the whole electronic disclosure process or just one or two elements depending on their own resources.
I did not attend LawTech Futures 2012 – the Future of Legal Technology, the conference organised by Netlaw Media and the Orange Rag’sCharles Christian last week. There is enough to do on my own patch without straying into the wider pastures of general legal technology, and I reckoned that I would hear enough about it to save me the trouble of going. The expression “hear enough about it” proves something of an under-estimate, and we have not even seen Charles’ own report yet.
Comprehensive reporting
He can probably save himself the trouble, in fact, thanks to the comprehensive report of Brian Inkster of Inkster’s Solicitors, on his Time Blawg. Headed LawTech Futures 2012 Reviewed: the Search for the Holy Grail of Legal Technology Conferences has Begun!, Brian’s report amply justifies my decision to wait and take it all in at second-hand. When you add the enormous quantity of high-quality photographs which have been posted – and this is just the first batch apparently – physical presence was clearly unnecessary.
I like the idea, incidentally, of photographing Charles Christian from below with half his face in darkness as he delivered his Brave New Technology Future speech – the Ghost of Christmases which will never come if you don’t get your act together, perhaps.
The already apocalyptic effect of this is enhanced by converting the photograph to black and white.
Good marketing
Some broader points arise which are of importance to anyone organising conferences aimed at lawyers and law firms. The marketing was brilliant – it obviously helps that Netlaw Media and Charles Christian are both professionally concerned with marketing and promotion in this space and have the skills, the contacts and the platforms to reach both sponsors and delegates. The post-event marketing, which is important for more reasons than the attraction of next year’s sponsors, has maintained that high-quality pitch. Read the rest of this entry »
Disclosure in UK civil proceedings, with or without an “e” at the front of “disclosure”, is not a game for amateurs, raising serious points about the strict interpretation of a deceptively simple-looking rule as well as practical considerations – and that is before you get to the technology. If UK lawyers can learn something from Shah v HSBC Private Bank, US litigators will see one reason why UK disclosure is so much narrower in scope than the bloated excesses of US discovery.
I am obliged to Ashurst for the case summary which tipped me off to the judgment covered here. The case is Shah & Anor v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154 (13 October 2011). The claim itself concerns a delay in banking transactions which occurred because the bank suspected money-laundering and felt obliged to make authorised disclosures under the Proceeds of Crime Act 2002.
The application which came before the Court of Appeal concerned disclosure under the Civil Procedure Rules. Two questions arose: did the bank’s standard disclosure obligations require it to reveal the names of the bank employees who were involved? If they did, was it entitled to preserve that anonymity by redacting those names on the ground of public interest immunity?
The court (the main judgment is from Lord Justice Lewison) found for the bank on a strict interpretation of Rule 31.6, the definition of standard disclosure; the PII point effectively dropped away.
The paragraphs numbered down to 18 are a recital of the underlying facts. The claimants wanted to know the names of the individual employees involved in complying with the POCA requirements and with the bank’s internal procedures. The question arose as to whether this information was “relevant” although, as we shall see, this is in fact the wrong question. Read the rest of this entry »
Arguments continue as to the value of Google Plus as a FaceBook rival. I don’t much care about that, only about its ability to attract wider audiences. It is working for me (well, something is) and I continue to put short posts on my Google Plus page, cross-linked both from occasional summary posts here and from my web site.
Quite apart from the SEO (Search Engine Optimisation) value, this allows me to cover a wide range of subjects and pick up more of the many useful articles which come by without triggering an email to my Blog subscribers with every addition.
Recent additions on Google Plus include the following:
It is perhaps not surprising that we have yet to arrive at a universal name for the set of algorithms and processes which lie at the higher end of the eDiscovery / eDisclosure market. Barry Murphy addresses this in an eDiscovery Journal article called Technology-Assisted Review: What Should We Call This Market?, showing by his article’s title that one cannot even open the discussion without picking one of the variants to establish what the subject is.
If I favour predictive coding, it is because that is the term used by the first entrants into the market, becoming a useful label more or less divorced from the bare meaning of the words. Those who came afterwards wanted simultaneously to claim their place at what was evidently becoming the top table whilst simultaneously seeking differentiation – a differentiation which the first-comers are equally keen to preserve. Barry Murphy identifies some of the terms and gives us a poll in the hope of steering us towards a consensus. Read the rest of this entry »
He that is without sin among you, let him first cast a stone
You will all by now have seen or heard about Mr Justice Ramsey’s judgment in West African Gas Pipeline Company v Willbross Global Holdings Inc in which the claimant was ordered to pay certain costs to the defendant arising from a series of defects in the claimant’s electronic disclosure. You get some idea of the scale of it from the fact that the judge felt unable to quantify the costs and sent them off for detailed assessment, ordering £135,000 be paid on account.
So what? Yes, I mean it. So what? What new law is there here? What do we learn from this case about electronic disclosure that we did not know before? Disclosure on the scale required for this case is a difficult and complex business. Lawyers owe a strict duty to the courts and to their opponents as well as to their clients. The parties themselves have onerous duties. Massive sums are spent on both sides, both by those giving disclosure and those dealing with what comes in on exchange. The potential for it all to go wrong is very high, and the prime responsibility falls on the lawyers with the conduct of disclosure. Read the rest of this entry »
A version of the law of diminishing returns is relevant to one function of predictive coding – its use for prioritisation makes it possible to calculate how much value you are finding relative to the number of documents you are reviewing. The same applies, perhaps, to articles about Judge Peck’s decision in Da Silva Moore v Publicis Groupe, as each one finds it harder to bring something new to what has already been covered. There is still room to add value to the subject, however, and this is not the last of my articles on the subject.
The two companies named in my heading, iCONECT and Equivio, are in fact related in that there is a partnership between them which appears from both their web sites. That is a coincidence so far as this article is concerned. They are grouped together because both have recently launched visual enhancements to their applications and their web sites which are worthy of note. They have both made enhancements, also, to the technology in their applications, but I am here concerned only with what they look like and how they work from the point of view of a potential customer who wants to know about the products.
If you think that this is a superficial approach to marketing business tools then think again. I do not suggest that law firms and corporations make purchasing decisions on the strength of web site artistry, because any serious player (and these companies are interested only in serious players) will delve well below the surface before buying anything. I am not, either, suggesting that their rivals in the same space are backward or deficient. Marketing, however, consists in part of catching the eye, and both these companies have certainly achieved that.
Let’s start with Equivio, who have simultaneously released a user application, Zoom, and a web site which have torn up the standard spec for both. Zoom, which combines Equivio’s near-duplicates, email threads and Relevance applications, is crisp and white. It has as little as possible on the screen at any one time, and “intuitive flow” (their choice of words, but I’m happy to endorse it) from one stage of the process to another, and the use of graphics wherever possible to give clear guidance as to the present status of the processes. Read the rest of this entry »
I am, on the whole, fortunate in the judgments which I have to read. Most of them involve procedural failures and breaches of what are, frankly, fairly straightforward obligations. You do not have to be a lawyer or a technologist (let alone both) to understand the provisions of Part 31 of the Civil Procedure Rules and its practice directions, nor the US equivalents. I quoted with approval the assertion by Allison Stanton, eDiscovery Counsel at the US Department of Justice that “[Her] 5-year-old can tell by page 3 of an opinion that it is going to end in sanctions” (see Compare and Contrast: US and UK attitudes to Preservation Sanctions).
That is not, of course, to say that electronic disclosure / electronic discovery is easy, nor to suggest that there is no room for fundamental disagreement about the application of the rules and precedent to any particular case. The law itself, however, is pretty straightforward.
The same cannot be said for the matters which came before the Court of Appeal in Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd & Anor [2012] EWCA Civ 265 (09 March 2012) which addresses multiple matters of the law governing commercial contracts which, separately and together, explain why the commercial bar attracts some of the highest intellects. The central issue, however, and the reason why HHJ Simon Brown QC sent it to me, appears in the opening paragraph, which reads as follows:
The principal question which falls for decision in this case is whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial transactions for a contract of guarantee to be contained in a single document, and it is no doubt convenient that a guarantee should be evidenced in this way. The question however which arises in this appeal is whether it must. Christopher Clarke J, in the Commercial Court, held that it need not – [2011] EWHC 56 (Comm); [2011] 1 WLR 2575. He held that an enforceable contract of guarantee may indeed be found in a properly authenticated series of documents. His decision is said to have been unorthodox and contrary to the understanding of commercial men. It is said to have caused alarm. Read the rest of this entry »
Here is an interesting judgment, Patel v UNITE the Union [2012] EWHC 92 (QB) (27 January 2012), which Professor Dominic Regan has pointed me to. The target of postings on a union Internet forum alleges defamation and harassment. The union claims that the forum has been deleted and that they cannot identify those who made the postings. What help will the court give to the alleged victim in his efforts to identify those who wrote about him?
The story, put as briefly as possible, is that anonymous union members made observations about Mr Patel which give rise to potential causes of action against them. He claims both that the postings amount to actionable libels and, in the alternative, that he has a cause of action under the Protection from Harassment Act 1997. The forum had warned its members that their true identities might be disclosed to third parties, subject to relevant data protection and privacy rights.
Patel obtained a court order against Unite requiring them to make a reasonable search for the information and to serve a witness statement. Unite claimed that the information was no longer available, and resisted an order for examination of the relevant servers on grounds which included the data protection and privacy rights not only of those who made the postings but of everyone else who had used the forum.
The judge concluded that he had power to make such an order on the basis that, whilst identification of the alleged wrongdoers may not be achieved as a result, it certainly could not be achieved without the order. Protection against intrusiveness would be achieved by the appointment of an independent expert agreed on by the parties who would provide nothing more to Mr Patel then “information which identifies those responsible for the posts complained or which explains why (if that be the case) they cannot be identified”.
This, said the judge, met the requirements both of proportionality and of protection of privacy and data protection rights.
Relatively few of the eDisclosure / eDiscovery newsletters focus on the UK, so it is good to welcome Epiq Insights from Epiq Systems which is now available as a web page as well as by subscribing to an e-mail. The current edition is here.
It includes links to articles which are either about the UK or which, whilst having a US origin, are relevant to those responsible for the management of UK eDisclosure exercises.
Of the ones I have not seen before, I refer you in particular to the New Law Journal article on right-sizing the outsourcing of document review written jointly by Epiq’s Saida Joseph and Mark Surguy of Eversheds. Its conclusion is that the on-shore / off-site model for document review is the one which strikes the best balance between cost and risk.
This is a relatively new model for the UK market and one which has attracted a lot of attention very quickly. I gave a video interview yesterday for the College of Law. Quite often when I do these things, I am invited to say what I want to talk about. The College of Law works the other way round – they detect the trends which interest their audience and send me the questions. One of this year’s questions, appearing for the first time, was about managed review Read the rest of this entry »
Nigel Murray, managing director of Huron Legal in London, is limbering up for his annual bike ride to raise money for Help for Heroes.
This year the ride is across the Great War battlefields of north-eastern France. It involves 375 miles in five days, no mean feat for a man of a certain age whose posterior is more used to a comfortable seat at a desk, in an aeroplane or in a restaurant, and who can often be found with a beer, a cigarette or both in his hands.
Nigel has raised over £15,000 over the three years in which he has done this ride. This year he is to be joined by a team from Huron’s London office – a fine instance of leadership by example.
I used the expression “over the top” in my heading for a reason. It has come to be associated with divas having hissy fits, with the extravagance of some electronic discovery or with the faux outrage of the Daily Mail as it incites its readers to get worked up over some triviality. The expression in fact derives from those same trenches which the Help for Heroes cyclists will see as they cross France. Nothing one can imagine could equal the terror one would feel, and the courage one would need, waiting in a trench for the dawn whistle which was the signal to climb over the parapet and out into the shelling, machine-gun fire and barbed wire which lay over the top – officers and men in the shared democracy of death and injury. Read the rest of this entry »
The first is Dominic’s interview with Lord Justice Jackson which he has now written up for New Law Journal under the heading Jackson on Jackson. Those with an interest in electronic disclosure will focus on two things – the promise of training for judges in costs management and this blunt warning to practitioners towards the end of the article:
They should start to think about costs budgeting now and also look to embrace technology. The days of paper are numbered.
Many in my profession, I know, treat a deadline as the starting gun. I remember fondly my conversation with a law firm partner six months after the UK Bribery Act came into force. I mentioned it as a reason for lawyers to become acquainted with the technology which exists both to identify deviations from the norm in a proactive way and to enable efficient reaction to requests by regulators or prosecutors. “The Bribery Act”, he said. “Ah, remind me…”. Read the rest of this entry »
One does not have to be obsessive about web rankings to be interested in the reach of one’s blog posts, particularly in an industry which constantly evolves – or, as recently, takes the occasional big jump. Can one be heard beyond one’s regular readers, in an area of business in which everyone has something to shout about?
Idle curiosity made me do a search yesterday morning on Google.com for judge peck da silva moore. I was pleased to see that an article of mine – published less than 24 hours previously and in competition with many US articles – appeared on the first page of search results. A search for peck predictive coding, again in Google.com, had my article at the top.
A post by Millnet’sCharles Holloway (or, strictly, the home page of Millnet’s blog) also appeared on the first page of the first of those searches. Amongst the things Charles and I have in common (being English solicitors with an interest in US eDiscovery is a prerequisite for what I am talking about) is our use of WordPress as our blogging platform. I chose WordPress originally (this was in 2006) because tests showed that it had better SEO (Search Engine Optimisation) than Google’s own blogging platform. Read the rest of this entry »
Each year, Andrew Haslam of Allvision writes a comprehensive report of LegalTech through the eyes of UK visitors. I say “visitors” in the plural because Andrew solicits contributions and views from others and splices them together.
This year, it seems, contributions and views were not the only thing he picked up from LegalTech – he returned with a debilitating infection which is only now fading away. That may have affected the timing of this report, but has done nothing to lessen its quality. It can be found here.
I interviewed Professor Dominic Regan last week about pending developments in UK litigation. Dominic Regan is speaking at IQPC’s Information Governance and eDisclosure Summit, which takes place in London between 14 and 16 May, where I will introduce and moderate the session. In this interview, Dominic Regan foreshadows the major changes which he will talk about at the Summit.
Chris Dale: Hello, I’m Chris Dale of the UK-based eDisclosure Information Project, which carries information about electronic disclosure – electronic discovery as every other jurisdiction calls it – between judges and lawyers and clients and suppliers. I have with me Dominic Regan who is a solicitor, writer, broadcaster, and an adviser to Lord Justice Jackson on cost management, and on the Costs Management pilot. He is also a professor at City University, London. He provides litigation training to a number of Government departments and to many law firms throughout the UK, and hosts webinars, writes, and generally spreads the word about case management and other aspects of litigation. Professor Regan is due to speak at IQPC’s annual Information Governance and eDisclosure Summit, which takes place in London between 14th and 16th May. His subject there is 2012 – The Most Significant Year in the History of eDisclosure? Like Richard Susskind’s book title, The End of Lawyers?, this has a question mark at the end of it. From where I sit I think that 2012 will indeed be the year of disclosure.
We have just seen a significant judicial opinion in the US by Judge Peck in the Da Silva Moore case, which gives judicial blessing to the use of advanced technology known as predictive coding. The UK Courts have just penalised a party in costs for its disclosure failures, which will help focus minds on the risks of inadequate disclosure. The Richard Susskind line – that law firms will see their traditional practices whittled away by what he calls disintermediation, as others offer the components of litigation tasks at lower and more certain costs – is something else that solicitors have to look out for. And we have the Cost Management pilot coming out of Birmingham, and other aspects of Lord Justice Jackson’s proposals, which are now heading into law.
Dominic, let’s start with a very broad question about Lord Justice Jackson’s reforms. How important are they? Read the rest of this entry »
It needed no great prescience to anticipate a flood of articles about US Magistrate Judge Andrew Peck’s opinion in the Da Silva Moore predictive coding case (Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. February 24, 2012). I made an early election to stand back before writing about it, reckoning that I do you better service by pointing to the best of the early reactions and then taking a broader approach myself, not least in jurisdictional terms. I may challenge from time to time the idea that the US is in any sense “ahead” of the rest of us in terms of rules and processes, but there is no challenge to the suggestion that new technology gets its most exacting trials in the fire of the Federal Rules of Civil Procedure, and other jurisdictions can observe and learn.
In what is, I think, the only UK article thus far apart from mine, Charles Holloway of Millnet reckons, in an article headed In the jaws of ediscovery, that an English judge would take the same view as a US judge in similar circumstances. There are judges and judges of course, on both sides of the Atlantic, but I think Charles is right. Millnet know whereof they speak in this regard, having been involved in the only UK predictive coding case whose outcome has been written up publicly – see my article Two predictive coding case studies emphasise time and cost savings, which involves a US case involving Epiq Systems well as Millnet’s UK one.
The present article points to some (by no means all) of the commentary which has appeared already, allowing me to go on to take a slightly different approach in my separate article.
The best plots are those which can be summarised in a few words. “Father murdered, uncle bad, Ophelia hot, Hamlet mad, all dead” tells you all you need to know about Shakespeare’s most famous play. The equivalent in respect of Judge Peck’s opinion came from Warwick Sharp of Equivio who quickly boiled the whole thing down to this: Read the rest of this entry »
A LegalTech panel organised by Xerox XLS gave us the opportunity to hear four well-known judges discuss the use of technology for eDiscovery. Only one of us knew that the subject would become headline news within days, as Judge Peck moved towards his important Opinion in the Da Silva Moore case.
The trouble with predictive coding, as we all know, is that no one can agree on the numbers. Were there 17 sessions at LegalTech in which technology-assisted review played a big part, as somebody said? Or was it 21, as somebody else said? It depends on some collaborative assessment as to what we are measuring.
The number of conference sessions and articles about predictive coding at and around LegalTech did not seem to me to be excessive having regard to its importance and its potential as it then appeared. I went to only one of them, organised by Xerox Litigation Services, my choice dictated partly by the composition of the panel and partly because it was an early morning breakfast session, allowing me to fit it in between an even earlier breakfast and a packed day.
The panel, from left to right in the picture above, comprised US Magistrate Judge Frank Maas, Senior Master Steven Whitaker from the UK, US Magistrate Judge Andrew Peck, and US Magistrate Judge David Waxse. The moderator was Gabriela Baron of Xerox XLS. Read the rest of this entry »
There is no doubt that the hot topic at the moment is predictive coding following Judge Peck’s written Opinion of last week.
The rest of the eDiscovery world does not, alas, take time out to clear the stage for any one big topic, and I have captured on my Google Plus page some of the articles and points which have arisen in other areas. It is like bailing a leaky boat – as fast as I get things out of my store of interesting things to come back to, more comes in at the bottom.
I have no particular ambition to catch it all, and most of it is readily available as it happens on Twitter. Whilst we now know that Twitter is flogging off our old tweets for advertisers to mine, the reality for most of us is that what rushes past is lost as soon as it reaches the bottom of the Twitter screen. It seems worth capturing some of it as it goes. Today’s articles include, in no particular order:
That is a pretty wide range of topics to fit under the general heading eDiscovery, and barely scratches the list of things to cover.
In between all this, and rather less seriously, a three-way exchange was running on Twitter about Mr Cameron, Rebekah Brooks and the ex-police horse Raisa. I wrote about that here:
After leaving Oxford, I
qualified as a solicitor in 1980.
I have worked as a consultant
and developer in litigation support since 1993.
My primary focus is on the encouragement of
e-Disclosure by working with the courts and
with suppliers to achieve a joint approach.
Sometimes, labels simply become affixed to a subject or category without direction or decision, in the way that “social media” has stuck to a range of mechanisms which allow people to communicate. Like the smooth green surfaces on Dartmoor which conceal deep quagmires, they are traps for the unwary. Read the rest of this entry »
Posted by Chris Dale 
