Costs management: Mr Justice Ramsay describes why it is necessary

I wrote recently about the coming regime of costs management in civil litigation – see Costs management moves closer in England and Wales.

We now have a more authoritative reference document. Mr Justice Ramsay delivered a speech a few days later with the heading Costs management: a necessary part of the management of litigation, available on the Judiciary website. The speech provides as good a summary as you could want of the reasons for managing costs from an early stage in a case, of the practical implications, and of the likely consequences of the new regime.

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Early Data Assessment – a webinar with AccessData and Apersee

I took part in a webinar yesterday with Caitlin Murphy of AccessData, Tom Gelbmann and George Socha of Apersee, and Chad Papenfuss of the Federal Trade Commission. Our subject was Early Data Assessment and the title we gave to it was Early and Often – the word “often” implying that assessment is a continuing process which goes on throughout a case.

We began with the steps which can be taken to work your way into the problem, perhaps starting with the primary document sources of the main players and using their documents as a way of establishing the issues and facts, the holes which must be filled and the potential costs of moving out to a wider set of documents should that be required.

The rise of social media is a growing problem, alongside its many benefits. However many terabytes you have of email and Word files, there is plenty of scope for a blog post, Facebook entry or tweet to become the turning document in a commercial case as well as in divorce and personal injury whence most examples have come hitherto.

The courts are becoming increasingly involved in the assessment of the data implications – the SDNY Model Order for Complex Cases and the UK Electronic Documents Questionnaire both aim to give the court an early feel for the scale of the data as a precondition for understanding what course in proportionate.

Mention of the SDNY Model order took us into the area of lawyer competence – the lawyers are required to certify that they understand the implications of the sources or have engaged the services of someone who does. One cannot really define “competence” beyond reciting the rules governing lawyer capability. The definition must necessarily include “knowing the limits of your knowledge”. A good starting-point is a check-list, perhaps using the UK Questionnaire as a starting-point, to make sure that whole areas – such a social media – do not get overlooked entirely.

In answer to a question from the audience, we considered the circumstances in which forensic collection would be necessary or justified. One often-overlooked element is the relative continuity of personnel within the company and within its chosen provider of forensic services – would the person doing the collection still be available when the time came to prove what was done?

We ended with a look at costs and the ways of controlling them. It would be a good start to know what you spent last year, because how else can you measure the value of any investment aimed at reducing those costs?

This was enjoyable to do in such company. We were joined by 244 live listeners, a very satisfactory audience.

The webinar is available on demand on the Apersee site.

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Predictive coding case study with Millnet and Eversheds

I wrote recently about a short podcast about predictive coding which I made with James Moeskops of Millnet.  We have now done another one, this time with Dominic Lacey and Jamie Tanner of Eversheds.

The context was provided by an exercise which Millnet did with Eversheds in a Commercial Court matter for which predictive coding was seen as the most practical and cost-effective way of dealing with very large volumes of documents. It was one of the exercises which I wrote about in my article Two predictive coding case studies emphasise time and cost savings. The motivation to use predictive coding software (Equivio Relevance in this case), came, as Dominic Lacey explains, from the very high number of false positives which were returned by keyword searches.

Eversheds is one of the more forward-thinking firms in the use of technology for litigation and for other matters where large document volumes are encountered, and the interview, which I moderated, was a good way of hearing about it from the horse’s mouth.

Short podcasts like this – it runs for only 19 minutes – provide a painless way of absorbing news and information. You can link to the podcast from Millnet’s page about it here. That links also to a transcript of the interview and to Millnet’s own article about the case study.

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Hobs Legal Docs takes Relativity and makes a senior appointment

London-based litigation and document management provider Hobs Legal Docs has made two significant announcements whilst I have been on my travels.

The first was the appointment of Patrick Rowan as Sales Director and as a Board Director of Hobs Legal Docs Ltd. Patrick comes from Ernst & Young whence he brings skills and experience in eDiscovery and eDisclosure as it arises in Competition and Regulatory matters, as well as experience in forensics data analytics. The Hobs press release about Patrick Rowan’s appointment is here.

I have yet to meet up or speak with Patrick since his appointment, as I like to do when appointments are made at this level, and hope to remedy that soon.

The other news from Hobs is that it has been appointed a Relativity Premium Hosting Partner, as you can see from the Hobs press release here and the kCura one here.  I was asked at a seminar this week if I would point the delegates to providers of software and services.  I gave my usual answer which is that the list of logos of those who support the eDisclosure Information Project is a good place to start, whilst adding in the interests of objectivity that there are other players in the market. Providers like Hobs bring a wide range of choices, together with the consultative skills and experience to help point users towards the right solution for their particular needs.

As you can see from Hobs Partners page, there is some overlap between their partners and my sponsors, as Relativity joins Westlaw CaseLogistix, Guidance Software, Clearwell and Equivio amongst others on the list.

It is worth reminding you that Hobs has a Manchester office and that all these applications, together with Hobs’ ability to manage paper disclosure in tandem with electronic disclosure, are available from there. I was in Manchester with Terry Harrison of Hobs in January (see eDisclosure seminar in Manchester with Hobs Legal Docs) and hope to be back there, this time on my own, later in the year. My next trip north is to Leeds on 13 June for MBL Seminars, something I will write about separately.

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Costs Management moves closer in England and Wales

I have already drawn attention to an article by His Honour Judge Simon Brown QC in the New Law Journal called Costs management & docketed judges: are you ready for the big bang next year? which describes what is to be expected by parties to civil proceedings in respect of costs budgets. The takeaway quotation is:

The days of putting in a bill at the end of a case based on a multiple of billable hours x by £x per hour and expecting to be paid are over.

I come back to the subject in case you missed a practical example of costs budgeting in action, with a result which reflects the warnings given by Judge Brown. The case is Henry v News Group Newspapers Ltd (Rev 1) [2012] EWHC 90218 (Costs) (16 May 2012) and the title of a Legal Futures article says it all: Senior Costs Judge disallows budget overrun in landmark costs management ruling.

That article links in turn to an explanation by Andy Ellis, the costs lawyer who acted for NGN. Again, its title tells you all you need to know – Actual – Budget = Catastrophe.

As the Senior Costs Judge explained in his judgment, the case was dealt with under the Defamation Proceedings Costs Management Scheme.

Last in this set of links is one to a Daily Telegraph article headed Hourly billing for lawyers should end, says top judge which reports a speech by Lord Neuberger whose message is clear enough. The central point is reported thus:

[Lord Neuberger said] “Hourly billing at best leads to inefficient practices, at worst it rewards and incentivises inefficiency.”

He said it penalises those who are able to bring cases to a close quickly, adding: “It also penalises the able, those with greater professional knowledge and skill, as they will tend to work at a more efficient rate.

“In other words, hourly billing fails to reward the diligent, the efficient and the able: its focus on the cost of time, a truly movable feast, simply does not reflect the value of work.”

He said: “In practical terms, any business which bases its charges simply on costs does not deserve to succeed, or even, some might say, to survive.

Lord Woolf said something similar in his report which gave rise to the 1999 Civil Procedure Rules. This time, the nettle is to be grasped.

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Metrics, Social Media, Magistrates, Monkeys and Mitigating Risk at CEIC 2012 in Las Vegas

I am not above inventing a headline whose connection with the subject-matter is less important than its potential for attracting readers curious to know what the article has got to do with eDiscovery. In this case, the headline is an honest, if partial, summary of what lies below: metrics are the key to eDiscovery decision-making; social media is the fastest-growing source of potentially discoverable data; Magistrate Judges turn up to share their wisdom with us; monkeys appear twice, once as part of the question “who are you talking to?” and once in an echo of a recent post of mine about cross-border discovery and blocking statutes; risk mitigation is the theme which binds them all together.

I have been at Guidance Software’s CEIC 2012, a pool of civilised learning and meeting in the cultural and topographical deserts of Nevada. There have been more than 1,500 attendees here from 43 countries, with 53 exhibitors and 118 information sessions. I have been here since Saturday; the show has now closed and I am stuck here until tomorrow, giving me the first opportunity to write anything since I arrived. The rest of the time has been filled with preparing and giving my own sessions, attending excellent presentations given by others, and with parties, dinners and useful conversations by the pool.

Something for everyone at IQPC’s Information Governance and eDisclosure Summit

If you want a rounded account of IQPC’s successful Information Governance and eDisclosure Summit in London this week, this is not the place to find it. I was involved in five events over the three days and spent most of the rest of the time talking to providers, judges, lawyers and in-house eDisclosure people from law firms and their clients, attending very few sessions as a result.

The nearest you will get to a narrative account can be found by looking for the #infoGovSummit hashtag on Twitter and particularly the tweets of Recommind @Recommind,  Barclays’ Matt Ward @_Matthew_Ward_,  and the ever-reliable Andrew Haslam @AndrewHaslam (winner of the event’s tweeting prize).

FTI Technology Panel

It began for me with a workshop led by Craig Earnshaw of FTI Technology at 8:30am on Monday morning. Our subject was When Volumes get Large: How to Keep Control of Your eDisclosure, which was kicked off with talks from Glen Greenland and Ian Smith of FTI and then taken up by a panel comprising Matthew Davis of Hogan Lovells, Jean-Bernard Schmid of the Geneva Public Prosecutor’s Office and me. No eDiscovery exercise, whether for civil litigation, or for an investigation for regulatory, criminal or internal purposes, ever ends up smaller than anticipated.  What resources, of people and technology, do you bring to bear in a way which remains proportionate whilst scaling up to meet new developments?  The subject was deliberately broad, and swept up a range of challenges from pure volume to time constraints to privacy and all the other wrinkles which are recurring features of exercises which are increasingly global in nature.

The most memorable moment had nothing to do with the primary subject – or perhaps it did. Craig Earnshaw asked for the most extreme example of geographical remoteness encountered by the panel. No-one sought to compete with Matt Davis’s reference to Hogan Lovells’ office in Outer Mongolia, neatly emphasising that there are no geographical limits any more.

Dinner with Nuix

A dinner hosted by Nuix on Monday night gave me another example of projects which turn out bigger than anticipated, as well as an object-lesson in the value of actually reading one’s e-mails.  

Conference topics indicate the important eDiscovery and eDisclosure themes

That part of my life which involves speaking has four elements – preparation, travel, delivery and reporting. The month of May always has a full diary of events, and this year has more than usual. Of the four elements, the only one which is optional is the reporting, and it is that which I must abbreviate here. I can make a virtue out of that by summarising the themes which run through my current batch of events, reckoning that the subjects which recur at events are those which are seen as important.

I am writing this from the top floor of the Wynne / Encore hotel in Las Vegas where I have been speaking at AccessData’s User Conference. Below me lies the vast complex of casinos, conference rooms, shops, swimming pools and catering facilities which are the standard mix in this city.  To my left, and  temptingly close, lies McCarran airport with toy aeroplanes taking off and landing. But for the iniquitous cost of today’s flights, I would be there now, getting ready to go home less than 24 hours after arriving here (I could not come earlier because of ILTA Insight in London). As it is, I am stuck here until tomorrow – though as offices go, this one is hard to beat. Away to my right lies the Red Rock Hotel; I will be there in a few days time for Guidance Software’s CEIC. It would be a great deal cheaper, and much more productive in writing terms, to stay here for the intervening few days, but IQPC’s big Information Governance and eDisclosure Summit takes place in London next week and I must be back for that. When CEIC is over, I must get back for a CPD  talk which I am giving in London.

What themes recur through these events?

Getting it right second time

Although I made it clear in my article Scattershot innuendo and muck that I was indifferent to the outcome of the arguments on the merits in Da Silva Moore, that is no excuse for substituting the word “Plaintiffs” for “Defendants” in the heading of an article whose entire purpose was to draw attention to the way in which one party is getting all the airtime in the commentary on the case.

Perhaps I was subconsciously proving my own point.  Perhaps the most sensible conclusion is that 4.00am on a Saturday morning is not the best time to think up article headings.

I am not too bothered about being defensive on this, but if I were, I would observe that it has taken until today for a sharp-eyed reader to spot my error. The tenor of the article was clear enough.

Changing the titles of articles is a pain, because they go through into the page names, and correcting them fouls up the SEO and breaks third-party links. It seemed, nevertheless, the right thing to do on this occasion.

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Google Plus eDiscovery and eDisclosure posts to 5 May

It has been a month since I published my last list of articles published on Google Plus and said that I would not be doing any more of them.

I speedily repented of that as the stream of interesting articles about eDiscovery and eDisclosure kept rolling by. I know of no other medium which combines each of use with reasonably good SEO. One compelling reason for continuing is that these lists, which are inevitably keyword rich, themelves index very well and if part of the aim is to spread information about eDiscovery / eDisclosure and its players, then I cannot ignore “findability”.

Here they are, in reverse order. There are more comprehensive indexes of recent additions to both the Google Plus and the Blog posts here.

Orangutans which look like Boris Johnson

Privacy compliance a requirement as Skadden Arps chooses Relativity

Planning the journey from Londinium to Eburacum

Nuix publishes Defensible Deletion report by Katey Wood of ESG

The Dominic Regan podcast for IQPC’s London Summit

Recommind’s Howard Sklar on computer-assisted review for the CPS

Technology-Assisted Review – technical experts to talk to the science

Ontario Case on relevance and privilege – L’Abbé v Allen-Vanguard

The drought reaches Oxford

A guide to logical fallacies

Apersee webinar with AccessData – Early and Often – 30 May

Empire Discovery adds OrcaTec to iCONECT’s Xera and kCura’s Relativity

Epiq Systems Q1 2012 results show 133% eDiscovery growth

kCura recognises RenewData as a Relativity Best in Service Partner

Craig Ball – a Bill of Rights for E-Discovery

LawTechCamp London June 29

Nuix donates $44,000 from Proof Finder sales to Room to Read

ILTA Insight in London – Beyond the Traditional Law Firm IT – 8 & 9 May

Symantec’s Matt Nelson summarises Judge Carter’s decision upholding Judge Peck’s predictive coding Opinion

UK government promises to improve airport queue delays

CY4OR’s Keith Cottenden writes about the scale and nature of cyber crime

Video: Bill “Sauce Boss” Wharton entertains (and how) at the iCONECT Global Summit on Litigation Technology

Law Firms take note: Nikon takes Symantec’s Clearwell eDiscovery Platform in house

Google Apps Vault Brings Information Governance to Google Apps

Guidance Software launches EnCase Forensic 7.03 for Faster, More Efficient Investigations

Predictive Coding – its Providers and its Synonyms from Rob Robinson

ASIC signs Three-Year Contract with Nuix for Electronic Investigation Software

CY4OR seeks Champions for Sales and Marketing Roles in the North-West

A window into eDiscovery disputes – Day 2 of the Kleen Products case

Judge Waxse sets an evidential hearing on hearing of obviously inadequate search

Are you a Data Controller or a Data Processor? It might be helpful to know

Ten years of eDiscovery mergers, acquisitions and investments

FCPA expert Michael Volkov move to “entrepreneurial” LeClairRyan

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Conor Crowley’s guidance on the Duty of Competence in e-Discovery applies beyond the US

Bloomberg BNA has published an article by Conor Crowley which looks at both the origins and the new developments in the lawyers’ Duty of Competence in eDiscovery. It is a US article about US rules and codes of conduct. The duties apply, in their essentials, however, anywhere else and whether or not local rules impose them.

He refers, for example, to a proosed amendment to the ABA’s Model Rules of Professional Conduct which reads:

‘‘To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.’

Anyone care to argue with that as a proposition for a litigation lawyer in 2012?

How about the certification which counsel must sign when making the Joint Electronic Discovery Submission in the S.D.N.Y Pilot Programme for complex cases?

(2) Competence. Counsel certify that they are sufficiently knowledgeable in matters relating to their clients’ techno- logical systems to discuss competently issues relating to electronic discovery, or have involved someone competent to address these issues on their behalf.

I don’t think you have to be participating the Pilot, or in S.D.N.Y or in the US or in a very big case for that to be at the least sensible as a starting point for giving proper advice to a client.

A good article and well worth reading.

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Scattershot innuendo and muck – the Defendants respond to the recusal motion in Da Silva Moore

So far as I can see, only two articles have been published so far to report on the defendant’s Memorandum of Law in response to the plaintiff’s motion for the recusal of Judge Peck in Da Silva Moore.  That response was filed on 30 April and it is now the dawn of 5 May. K&L Gates have published a brief reference to it, with links to the Response itself and its exhibits. Legal Technology News has published a straight-up-and-down account under the heading Defendants in ‘Da Silva Moore’ Oppose Motion to Recuse Judge. That article has been re-tweeted a bit, but the rest is silence.

Where is everyone, I wonder? Every move by the plaintiffs has been passed on immediately in blog posts, often with lurid headlines, and usually at a speed which may be a credit to their authors’ reaction times. It takes me quite a long time to produce a balanced summary of things like this; perhaps it’s the balance bit which takes the time.  It feels a little like watching a football match from which one team’s supporters have been barred.

Here by way of reminder is what I said about the plaintiffs Memorandum of Law in my article Peck predictive coding Opinion upheld: does anyone remember what this case is actually about?

It is, no doubt, a model of its kind, but it reads to English eyes as though a Daily Mail features writer has tried to parody the thesis of an aspirant lecturer at a New University. I must have nodded off when reading it, because I entirely missed the footnote which cites an article by me as evidence of the assertion that the defendants’ lawyer was pleased with the outcome of the last hearing.  (Let’s just go back over that: a party to US proceedings, seeking to overturn an order, feels the need to show that the other side were pleased with the order, and relies on an article by an English commentator to “prove” that unsurprising assertion. WTF, as we say in our understated English way)

Some of the articles which we have seen have consisted largely of extracts cut-and-pasted uncritically from the Plaintiffs’ court documents, topped off, as I have said, with an eye-catching headline. Let’s try the same approach here (I already have my eye-catching headline):

Barrister video on the 7 Deadly Sins of witness statements

I am inevitably interested in the ways in which ideas and information are passed to and by lawyers, since they are my target audience and I live by reaching them by whatever means come to hand. It is unsurprising that a barrister can make a video in which he or she passes on knowledge and skills – they are, after all, practiced in articulate oral expression of facts and arguments. It is good to find one who has actually made use of one form of new media, and then published it on another (his blog).

Those of us who follow Seán Jones QC  of 11 Kings Bench Walk on Twitter @seanjones11kbw do so for his dry and self-deprecating humour as much as anything. He is a senior employment barrister, and if I employed anyone or was employed (neither being conditions I aspire to), he is the one I would want on my side if a dispute arose.  That I reach such a conclusion entirely on the strength of a few tweets illustrates the power of social media as a marketing tool.

Seán Jones muttered something on Twitter recently about going off to make a video, and we now have the results, Witness Statements 7 Deadly Sins. How promising does this look, we ask ourselves, as we see that the video is of the talking head variety and delivered by a man who describes himself as having “a magnificent set of jowls and a grating nasal tone”. Even if this was a fair self-judgement (it is not), you would soon forget it.

EU Commission under fire for its data protection reforms

EUObserver.com reports that EU Justice Commissioner Viviane Reding has come under fire, from the Article 29 Data Protection Working Party amongst others, for the scope of and proposed timescale for her proposed new data protection rules.

These are seen by some as a “power grab” (What? The EU seeking to grab powers?) and fundamental issues arise not only about the speed with which implementation is planned but about the constitutional propriety of the proposals. Those of us who fully expected that the 2009 Treaty of Lisbon would be abused feel vindicated by the EU Commission’s claimed right to alter fundamental laws without reference to member states.

Don’t misunderstand me here. I am all for reigning in the abusive use of what should be personal information, and Commissioner Reding is probably the right person to take on the task. If the EU is to serve any purpose at all (and its primary purpose so far as I’m concerned is to provide employment for its elected members and bureaucrats) then this is the sort of thing it should be thinking about.

The key word here, however, is “thinking”, and it would be good to see some evidence that the full consequences of the proposals have been thought through before it is dumped on member states by ambitious politicians and job-creationist bureaucrats.

In particular, one would like to see some analysis of the “savings for business” which have been claimed for the proposals. I  can see that a unified set of regulations ought to be easier to navigate. The EU does not work like that, however, and every new set of regulations brings with it greater powers for arrogant officials to interfere and get in the way, whether or not any benefit results from the intervention.

Money drops from the sky at the end of every month for an EU civil servant, and none is ever dismissed for sloth or incompetence. They have no understanding of the needs of businesses and no incentive to make this work for them.

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Australia, New Zealand and Hong Kong claiming eDiscovery attention

Australia, New Zealand and Hong Kong only look close together when viewed from a long way away. They all have a common law eDiscovery tradition, but it is coincidence of timing rather than any specific commonality which groups them together in this post. A group of articles has bunched together in the electronic equivalent of my in-tray (Evernote, since you ask) and it is convenient to pick them off together.

So far as Australia is concerned, I have written recently about Practice Note SC EQ 11 which aims to limit disclosure of documents in the Equity Division of the New South Wales Supreme Court. That no doubt will be discussed at Chilli IQ’s 6th Information Management and eDiscovery Summit, due to take place in Sydney on 19 and 20 June. Confirmed speakers include Michelle Mahoney, Director of Legal Logistics at King & Wood Mallesons, and Browning Marean of DLA Piper US.

The subject headings cover the full range of current talking-points. The unambiguously named Predictive coding: what is it and how could it change the practice of law in Australia clearly aims to give this subject its due.  Michelle Mahoney knows more than most on on How to best manage outsourcing eDiscovery and hosting. Browning Marean is always lucid on legal holds. Add Nuix on Integrating legal technology into your organisation and you conclude that Chilli IQ are not stinting on quality speakers.

ILTA Insight in London – Beyond the Traditional Law Firm IT – 8 and 9 May

The next event in which I am involved is ILTA Insight in London on 8 and 9 May. This year it runs over two days and is produced in conjunction with LegalTech, a division of ALM.

I am moderating a panel on predictive coding on 8 May. The panel members are Senior Master Whitaker, Greg Wildisen of Epiq Systems, Vince Neicho of Allen & Overy and Browning Marean of DLA Piper US.

The focus of our panel is on the use of predictive coding by lawyers and the likely reaction of the courts, under the heading Litigation and Practice Support. A second session on Day 2 will look more closely at the technical aspects on the Emerging Technologies track.

The event itself has a much wider remit than eDiscovery. Other main topic headings include Efficiency and Strategy, Information Management, Innovation and Strategy, and Service and Process Support. Keynote speeches cover Cyber Crime and the Economic Outlook 2012.

There are still some places for this event. This link takes you to the right place to book one of them.

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