There is a lot going on in the eDiscovery / eDisclosure world at the moment, what with new Civil Procedure Rules in England and Wales, and with products, appointments and webinars to write about and conferences to plan for.
There has also been a stream of interesting articles which are worth passing on. I would normally seek to add some value with commentary of my own rather than merely give you hyperlinks, but they come thick and fast, and it seems better to pass them your way whilst they are topical rather than wait for an opportunity to expand on them. Besides, the articles in question have plenty of meat of their own and I do you no great service by adding more.
The subject is pending revisions to the Federal Rules of Civil Procedure, a subject which I have already covered in an article called A new definition of relevance in US eDiscovery? which was itself based on an article by Ralph Losey called Georgetown Part 2: New Rules are Coming! There was a curious lull after that, with relatively few US commentators seizing on two points in particular which seemed to me of significance – the proposed express incorporation of proportionality into Rule 26(b)(1) and planned amendments to Rule 37(e) which aim to clarify the “safe harbor” from sanctions where documents are deleted as a result of a “routine, good faith operation” of computer systems.
The problem (or one of the problems) with these areas is the lack of precision implicit in both. Preservation decisions turn on the “reasonable anticipation” of litigation, and anything involving the word “reasonable” involves a degree of subjectivity. Where a client is contemplating a voluntary but irrevocable decision such as the deletion of data, the average lawyer will err on the side of caution in circumstances where severe sanctions may be invoked against the client. The present wording of Rule 37(e) gives too much scope for “average” lawyers to take refuge in the safe course which urges clients to keep everything “just in case”. “Just in case of what?” the clients might ask. There are circumstances which will clearly warrant sanctions; there are those which equally clearly do not; there are grey areas. The lawyer’s job is to discriminate between them where too many simply give the risk-free advice to keep everything (and take a fee for giving it). Read the rest of this entry »
I am doing a panel session on Day 2 of the IQPC Information Retention and EDisclosure Managemement Summit with Ronke Ekwensi of Pfizer. Our subject is ESI preparation and preservation: Assessing – and addressing – your eDisclosure Liabilities. One of the aims is to cover the differences between the US and the UK approaches to preservation and to legal hold and I have been putting some slides together. It seems worth giving it a preliminary canter here.
Clearwell is the latest US ediscovery software company to produce a legal hold module, the logical extension to the existing components of its EDiscovery Platform. This is becoming a standard component of ediscovery applications – Guidance Software was, I think, the first to integrate such a module over two years ago.
A US lawyer needs no explanation of the importance of legal hold. It formalises the duty to preserve documents and records that an organisation “knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation”. This quotation comes from Mosaid v Samsung of 2004 and remains a good base definition although a lot of water has flowed under the bridge since then. Critics complain of the use of the word “reasonably” in qualifying both the expected state of knowledge and the degree of foreseeability, but none has come up with an alternative way of defining the trigger for preservation (though serious attempts are being made to improve on this).
The formal trigger in England & Wales is the issue of proceedings. Destruction before issue brings penalties only in limited circumstances involving an objective to interfere with future litigation and a positive act as opposed to an omission; further, the documents must be relevant ones, that is, ones which might have made a difference. The key issue is whether a fair trial is possible despite the destruction of the documents. Taking all this together, it is quite hard to attack another party for alleged spoliation before the commencement of proceedings. That said, the parties and their lawyers may have to explain what became of “missing” documents and to justify their destruction.
There are differences between the scope of US discovery and UK disclosure. “Relevance” in the US includes information which is reasonably calculated to lead to the discovery of admissible evidence, where the post-1999 UK definition is the potentially much narrower test whether documents are supportive of or adverse to the case of the giver or of any other party. Read the rest of this entry »
UK lawyers are rightly sceptical about the relevance of US e-discovery rulings to their own cases. Occasionally, however, one comes along which is grounded in universally-applicable common sense or which throws light on some basic technological point which has not been tested in the UK. Judge Shira Scheindlin’s ruling in the Day Laborer case is one such.
Every so often, a US ediscovery case appears which is illuminating to UK lawyers dealing with e-disclosure. I put it like that, because many US cases have the opposite effect when recited to a UK audience. The general principles are broadly the same, but most US cases rely on terminology and principles – of “sanctions”, “defensibility”, “preservation” and “legal hold” – which all have their equivalents here but which we decline, so far at least, to get quite so worked up about. If the US thinks us backward as a result, then we are content to be thought so. Some of our key principles – that you do not have to look under every stone when searching for disclosable documents, for example – are near-heresies in the US.
They will come to our way of thinking eventually and, meanwhile, we have quite enough to do at a more fundamental level. When Lord Justice Jacob challenged the view that “No stone, however small, should remain unturned” (Nichia v Argos, at paragraph 50), he was enunciating a principal vital to the meaning of proportionality which needs to be clearly understood; he did not mean that we could ignore electronic documents completely if it all looked a bit complicated. Master Whitaker’s judgment in Goodale v the Ministry of Justice simply applies existing principles of proportionality, active management, discretion and co-operation which, if understood correctly, could reduce the cost of electronic disclosure in almost any case. The new Electronic Disclosure Practice Direction 31B is neither complicated nor technical, and is easily understood by anyone who bothers to read it – as some commentators may care to before they next criticise it as unduly burdensome. Let’s bite that lot off before we start inventing new problems to conquer.
Whilst most US ediscovery cases are of limited appeal in the UK, we have the luxury of picking and choosing the bits we like – as in fact do US courts, since most of the Opinions are merely persuasive rather than binding outside the court in which they were made. Some Opinions give us painstaking explanations of basic facts which are relevant and helpful in any jurisdiction, and one of those is Judge Shira Scheindlin’s Decision in the Day Laborer case (National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2 011 WL 381625 (S.D.N.Y. Feb. 07, 2011) which was about a Freedom of Information Act (FOIA) request. It concerns the exchange of metadata and other matters relating to the form in which documents are handed over to the other side and, in looking at it from a UK perspective, I am going to skip most of the differences between our respective systems, the controversies over Judge Scheindlin’s ground-breaking opinions on other matters, and broader questions about lawyers’ discovery /disclosure duties, and just focus on metadata. Read the rest of this entry »
The sanctions handed down by US courts for ediscovery failures bewilder the rest of us somewhat. To my eye, if one wanted to design a system which was absolutely certain to encourage satellite litigation, tactical play and (as a defensive reaction) excessive discovery as a back-covering exercise, you would come up with something like the present sanctions regime. I wrote about this in my article International discovery, sanctions, ethics and US-UK comparisons at Georgetown in the context of Judge Shira Scheindlin’s Pension Committee Opinion, saying:
Providers of software and services use the threat of sanctions to encourage that pen across the bottom of the order form; if none of them has yet produced an advertising picture with an axe breaking through the door to the cry of “Here’s Shira”, it can only be a matter of time. The English just gape at them; you mean you get fined massive sums of money because you didn’t send everyone in the company a legal hold letter? Because you overlooked a box of old tapes? …… Americans have rather more respect for senior office holders – judges, public servants and politicians — than we do, or respect at least for their offices, and it has been mildly amusing to an outsider to watch the legal establishment in its various forms implying, without actually saying so, that Judge Scheindlin might, you know, perhaps, have gone a little over the top in Pension Committee. An outsider can be less restrained and say that, whatever view you take of the decision, Pension Committee has elevated the fear of sanctions to the point where they have driven out proportionality.
They seem to like it. The problem which it gives us in the UK is that the inevitable obligations to disclose electronic documents become confused with the apparent message from the US that it is both dangerous and expensive to do so, which is why I spend a lot of my time drawing distinctions between the two systems. The UK is no more tolerant than the US of truly culpable omissions and failures but we have, so far at least, managed to avoid giving litigants the impression that every false move risks enormous financial penalties. Read the rest of this entry »
The three-day IQPC Information Retention and eDisclosure Management Summit is over for another year. It is the biggest and best conference in the London calendar and one which genuinely aspires to do better each year. Everyone I spoke to seemed to think that it had achieved that aspiration.
I have to be careful here. I am on its advisory board and was involved in some of the planning going back to a late-night session in a Brussels hotel bar last October. I also clocked up 8 hours on its platforms this year, so I am perhaps not wholly impartial. It has the greatest concentration of people interested in e-disclosure, from judges to suppliers to lawyers to clients, and is the place to be for someone whose job involves carrying information between these players. My main interest lies in talking to people, which inevitably means that I attend few sessions beyond those in which I am involved. The loss is mine – there was a packed programme of important and interesting subjects and anyone with a stake in electronic disclosure would have benefitted from being there.
Monday was a workshop day. I took part in a three-hour session run by Legal Inc called Ready for the Regulator: the importance of equality of arms. It was led by Vince Neicho of Allen and Overy who, characteristically, had left nothing to chance in our preparation. Bill Sillett, an enforcement officer at the Financial Services Authority, had provided a scenario which was no less plausible for involving almost every aspect of an FSA investigation – what started as an apparently routine matter grew into a multi-jurisdictional one with criminal implications, SEC involvement, and a potential conflict between the company and some of its employees. Antony Montague, Associate General Counsel at McGraw Hill Companies, Matthew Davis, Litigation Support Lawyer at Hogan Lovells, Peter Cladouhos, Practice Support Electronic Discovery Consultant at Paul, Hastings, Janofsky & Walker LLP, and I brought our respective professional inputs to this scenario, with Vince as an able narrator and an audience which caught the spirit of the thing and joined in. If we ran out of time before we run out of script, that was because the audience was sufficiently involved to take us down useful byways. The main take-away for me was the confirmation that the FSA looks well on those who are both willing and able to co-operate at a data level as well as at a higher factual level. Read the rest of this entry »
No one with any interest in the US Federal Rules of Civil Procedure could be unaware of the debates which have been going on about the costs of civil litigation and, in particular, of discovery. A conference is being held on May 10 and 11 at Duke Law School, Durham, NC to consider new empirical research by the Federal Judicial Centre and other data and papers prepared by lawyers, judges and academics.
The expression “grasping at straws” has seafaring origins – a drowning man grasps at straws in the absence of anything more solid to cling to. It comes to mind whenever the subject of EU data privacy comes up in the context of US litigation where US lawyers, already drowning in electronic documents, an unrelenting timetable, and the fear of sanctions, will grab hopefully at anything which may save them from the additional difficulties posed by EU privacy rules. They read, for example, of what appears to be a “litigation exemption” and hope that it gets them clear of the whole data privacy problem.
This attitude follows from the feeling that the whole privacy regime is an anti-US device, something invented by Europeans (mainly the French and the Germans) to impede the due process of US law. This perception inevitably generates a backlash, and the language of many US courts implies not merely a defence but counter-attack. I have only just discovered, for example, that a 1987 case called Minpeco S.A. v. Conticommodity Servs., Inc., 116 F.R.D. 517 at 528 (S.D.N.Y. 1987 referred expressly to a “sham law such as a blocking statute”. More recently, the cases of In re Global Power Equipment Group Inc., and Accessdata v Alste appear, to European eyes at least, to imply contempt for the whole privacy business. Read the rest of this entry »
My self-imposed job description involves flitting between all the players in the electronic disclosure / electronic discovery world, picking up information and ideas from one place and dropping them in another. I talk to judges, lawyers and technology suppliers, read a lot of web-based information and exchange e-mails and tweets with people from every corner of the e-Discovery world – “world” in both the figurative and literal senses. I am interested in the court rules, the practice and the technology and in how they relate to each other.
I keep secrets where I have them – from working with lawyers on behalf of their clients or when I am told of pending technology or marketing initiatives, to say nothing of the gossip which flies around – but, on the whole, my role is to talk and write about what I hear or read. The only filter apart from confidentiality is whether I am interested and think that others will also be interested.
This is a privileged position – I have lots of privileges, but the ability to pick off only the things which interest me outranks the rest. It allows me, magpie-like, to pick out the bright and shiny things and leave the rest on one side.
One of the bright and shiny things in the litigation software market is Attenex, whose visual analytics caught my eye some time ago for precisely the reason why they attract lawyers – they make it possible to grasp the overview and to drill down to the detail in a way which is simultaneously efficient and intuitive. Attenex is now owned by FTI Technology, as is the equally iconic Ringtail Legal. FTI has now had time to bed these products down into their overall (and very broad) software and services offering and I thought I ought to go and see where they have got to and how the pieces fit together in the process. Craig Earnshaw, managing director of FTI technology in London, invited me in for an afternoon recently to bring me up to date. Read the rest of this entry »
The use of video turns up in these pages either where a supplier has used the medium to educate or to promote a product, or in a slightly embarrassed reference to my own reluctant appearances in front of the camera.
CEIC (Computer and Enterprise Investigations Conference) has come up with an interesting new use for the medium. They are offering free entry and accommodation for CEIC 2010 to the person who makes the best short video explaining why the maker wants to go to CEIC. The competition details are here.
CEIC was in Orlando last year. I was there in my capacity as a member of Guidance Software’s Strategic Advisory Board and thoroughly enjoyed it, despite torrential downpours. This year, the conference is at Summerlin in Nevada, so bad weather is unlikely. Read the rest of this entry »
I have already mentioned one of the four panels which Stratify is running on Tuesday, 2 February in the Sutton Parlor Center Room at the Hilton in New York. The sessions are as follows:
8.30 Can we have our cake and eat it, too? Cooperation vs. zealous advocacy
10.15 How much justice can we afford? Rescuing civil justice from the costs of eDiscovery
12.45 Is the tail wagging the dog? Winning on the law instead of winning on eDiscovery
2.30 The Good, the Bad, and the Ugly? International judges panel comparing different legal systems and eDiscovery approaches Read the rest of this entry »
Another decision of a US court shows the supremacy of the US courts over EU laws, at least as seen from the US. It doubtless plays well in Utah, but is probably bad news for US evidence-collection in the long term.
Before I begin, it would be kind to explain my title for those who are not au fait with recent US cases on data collection in Europe and with the claimed supremacy of the Federal Rules of Civil Procedure over EU data protection laws. In ordinary parlance, a “global power” is what the USA sees itself as. Nobody argues with that although, as events unfold before the Chilcot Inquiry into the decision to join America in the Iraq war, we do not share Tony Blair’s view that our relative status requires us to yap support like a sycophantic poodle whenever America condescends to speak to us. Access to data needs no explanation but, curiously, gives rise to much the same feeling in Europe vis à vis the US. By chance, the two most recent cases involving the claimed supremacy of American courts over trifling matters like EU data protection law are called, respectively, In Re Global Power Equipment Group, Inc and AccessData v Alste (see as to the first of these cases a helpful article by Morgan Lewis called French Blocking Statute still gets no respect from US court). Read the rest of this entry »
The second session at the Thomson Reuters Fifth Annual e-Disclosure Forum in London on 13 November was called Parallel and cross-border developments in handling electronically stored information. I was the moderator, although if Air Miles were the qualification for talking about international subjects, Browning Marean of DLA outstrips even me by a wide margin.
The panel comprised Senior Master Whitaker, Mark Surguy of Pinsent Masons in Birmingham, and Josh Ellis, Chief Information Officer at the Serious Fraud Office. I suspect that Master Whitaker has a wider range of knowledge on international case management matters than any other judge in the world; I opened by saying that, in the last six weeks, I have been in Brussels, Washington, Singapore, and in front of the UK Civil Procedure Rule Committee and the only other person present on all these occasions was Master Whitaker. In addition he is, as Senior Master, the channel through which requests under the Hague Convention are made. Mark Surguy was the only practicing commercial lawyer from the UK at LegalTech in New York this year. Josh Ellis, quite apart from his present role at the SFO, was responsible for international collections at PricewaterhouseCoopers for years and was thus able to bring a practical and hands on dimension to the discussion. Read the rest of this entry »
The second point is summarised as Lawyers can no longer plead ignorance about e-discovery technology. The problem is actually more fundamental than ignorance of the technology – getting to know the rules and the case-law would be a good start, at least to the extent of having a mental flag which pops up when the case in hand has any volume of electronic documents. As the article says, there are plenty of good solutions providers out there, easily found and ready to help – if it is negligence not to know the rules, it is no less so to be unaware of the solutions. I prefer the more positive view that there is work to be won by alliances with someone who can do well the parts you cannot do cost-effectively for yourself. Read the rest of this entry »
Unintended consequences are not necessarily unforeseeable. It was wholly predictable that the pre-issue obligations of the 1999 Civil Procedure Rules would shift the battleground to the front end of the litigation, and with obvious consequences in costs. As with the notoriously hard-fought US discovery process, if the rules give a weapon to the lawyers, then their duty is to use it. Lord Woolf seems a bit miffed, but has more to contribute to the debate than his reported attacks imply.
When Stanley Baldwin retired as Prime Minister and handed over to Neville Chamberlain, he promised “not to spit on the deck nor speak to the man at the wheel”. If Lord Woolf’s only contribution to the current debate were to come down from his lair every often and attack those who follow in his footsteps, then he would do better to stay at home. He has more to offer us than that.
Woolf recently attacked lawyers, judges and the government at a meeting of the London Solicitors Litigation Association, saying that they are all to blame for the fact that we have not seen the hoped-for reduction in litigation costs. Costs have in fact risen, putting litigation beyond the reach of all but the richest. Read the rest of this entry »
To say that electronic discovery is international connotes more than the cross-border ramifications of multi-jurisdictional litigation. There is commonality in the problems, the rules and the solutions, to say nothing of the implications for law firms of new ways of working. The Masters Conference was an opportunity to explore many of them.
My ambition to report on the Masters Conference in Washington before reaching the LexisNexis e-discovery conference in Singapore was defeated by various things – only so many hours in the day for one thing, and no power sockets on the planes. As I begin writing this, it is 4.00am in Singapore a week later and the conference here has been and gone. Read the rest of this entry »
The 2009 Masters Conference takes place in Washington on 12 and 13 October. Its title, Global Corporate Change – Navigating Discovery, Risk and Security covers only a fraction of the subjects covered in two days.
The best part for me last year, and the main reason I went, was a keynote speech by US Magistrate Judge John Facciola which I reported at length (see Leadership in Litigation). This took the debate beyond court rules and litigation technology and up into the importance of the court as a component of society. There is a direct line between competence and the efficient use of technology (on the one hand) and access to justice (on the other). Lawyers, judges, and governments which do not to make the courts accessible to everybody are not just failing their clients, the parties appearing before them or those whom they govern. Judge Facciola has the knack of making these things sound not just worthy sentiments but objectives directly related to our daily work.
What makes this job interesting is the breadth, from the minutiae of data handling to matters of state policy. There is almost no corner of the field which is not touched on in the course of the two day conference. If I pick out just the sessions from the program on the entirely random basis that I know the speakers, that is enough to give you the flavour of it. Read the rest of this entry »
I demonstrated my own commitment to information retention by mislaying my notes of the sessions at IQPC’s Information Retention and E-Disclosure Management Europe Conference in Brussels last week. As with all the best document retention policies, this means that I do not have to wade through masses of information and can focus instead only on that which is important – “important” in this context meaning what I can remember. It is reasonable to assume, perhaps, that the bits I remember are those which mattered most.
Patrick Burke and Judge Peck
We kicked off with a judicial panel moderated by Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software. Patrick is one of the relatively few in the US who “gets” the idea that, however sophisticated the US legal system may be in many respects, those who do business in a multinational context must take notice of jurisdictional differences. Rather too many assume that things are much the same over here if you shout and wave your arms about. Read the rest of this entry »
The UK cast itself off from the US and the rest of the common law world when we renamed “discovery” to “disclosure”. Now the whole Special Relationship has apparently died. US-UK cooperation on discovery/disclosure will survive that.
Inevitably, this column attracts comments from time to time, varying from the sophisticated to the obscene (Tom Lehrer once suggested that these two terms were interchangeable to a New York audience). One of the more thoughtful ones recently read simply as follows:
It’s bl00dy “disclosure” you dinosaur
My correspondent is, of course, correct in his succinct observation. Since 1999, Part 31 of the Civil Procedure Rules for England and Wales has referred to the identification and exchange of documents as “disclosure” where every other common law jurisdiction refers to “discovery” and, by extension, to electronic discovery or e-discovery or ediscovery (I draw attention to the difference between the presence or absence of that hyphen because, although Google treats the two terms as more or less the same, Twitter, annoyingly, sees them as different). Read the rest of this entry »
Today’s Times reports on the launch of a new Judicial College which will give judges the opportunity to top up their skills and keep up to date with developments in the law, practice and procedure. The Lord Chief Justice, Lord Judge, introducing the new scheme, makes the point that judges work alone and that “one judge very rarely sees how another judge sets about his or her work”.
The prospectus for the new college will be published next week. It will be interesting to see if case management, and in particular the handling of electronic disclosure, will feature in the prospectus as a stand alone topic.
Disclosure is one of the biggest components in a civil litigation case. Its costs have grown in proportion to the volume of documents which exist, and out of all proportion to the sums at issue. Judicial control of electronic disclosure or, rather, the lack of control, was highlighted in a report by KPMG in October 2007. Many of those who made representations to Lord Justice Jackson’s Civil Litigation Costs Review emphasised the importance of helping the judges with this, and he so recorded in Part 8 of his Preliminary Report (see pages 381 and 382). Read the rest of this entry »
An hour or so after I posted my blog entry eDiscovery certification bars new entrants arguing against the apparatus of exams and certificates for in-house staff, a new post appears headed The Critical Need for eDiscovery Certification followed closely by another post apparently based on the same press release. It is not a riposte to mine but a fortunate coincidence – I stress the word “fortunate” because, as I acknowledge in my article, this is definitely an area for debate. Chere Estrin, the author of the article, refers (as I did last week) to Socha-Gelbmann’s observations on the shortage of expertise in the market. All the more reason, says I, for opening the doors wide, leaving it to employers to choose the right people, and to direct them to external resources where they can improve their skills.
Chere Estrin takes the opposite view and points us to the Organisation of Legal Professionals which “has been formed for the purpose of providing an exacting and tough certification exam to establish core competencies”. Some of the names on the list of governors of the OLP are people I know or know of, are experts worth listening to, and are interested in the future of the profession. Read the rest of this entry »
My post about the increasing exchange of ideas between the US and UK on matters of electronic discovery (Preserving the old ways, protecting the new ways) followed a spate of references in US e-discovery commentaries to what is happening in the UK. I observed that “The UK’s apparently quaint approach to disclosure conceals some workmanlike rules which deserve better use and serious consideration by others as well as ourselves”. An English audience may be interested to see some of what is said about us in the US.
The sources referred to below are amongst those to which I pay regular visits anyway, but their common element last week was that they all linked to articles of mine (and therefore turned up on my visitor statistics list). The point of the observation is not so much pride in the quality of my audience as evidence that what happens in the UK is now of interest in the US, which you would not have found a year or so ago. Read the rest of this entry »
This column, as you may have noticed, is deeply attached to the old principles of discovery of documents as a means of bringing evidence before the court. It is also a determined advocate of new ways of managing it. The US has tended to look on our rules and practice as rather quaint. As the gloss comes off the American way, however, there is a new appreciation of the British approach.
My title comes from a 1968 song by the Kinks. The Village Green Preservation Society included the lines
Preserving the old ways from being abused
Protecting the new ways for me and for you
What more can we do?
The Kinks were past their prime by 1968, with Waterloo Sunset and Sunny Afternoon behind them. It was the year in which Led Zeppelin and Deep Purple were new, and the nostalgia and sentiment of The Village Green Preservation Society were deliberately out of the mainstream, championing old virtues in a style redolent of an older (and perhaps non-existent) past. The previous year’s Summer of Love and flowers in your hair may in truth have been pretty unsophisticated concepts, but they seemed very modern compared with Ray Davies’s plea for “little shops, china cups and virginity”. Read the rest of this entry »
Vince Neicho, litigation support expert at Allen & Overy in London, has an interesting article in Legal Week about the increasing amount of discussion and shared ideas between those interested in e-discovery / eDisclosure in the US and the UK.
The heading, The same, only different, and the graphic which merges the flags of the two countries, presage the points which Vince makes. There are a mass of differences between the way the courts of the two countries approach the obligations which the parties have to disclose documents. In many ways, the perception amongst UK lawyers and judges that the whole business is just very expensive stems from these outward differences.
What the article does, however, is to emphasise that there are also core similarities, and that these are likely to increase as each side learns more about the rules and practices in the others’ jurisdiction. Read the rest of this entry »
The default map of the world shows Britain in the middle and near the top, with Alaska at top left and New Zealand at bottom right. Perhaps that is because Europe invented the Greenwich Meridian; maybe it is a legacy of Empire or a conspiracy of cartographers (the phrase is Tom Stoppard’s); possibly the maps in Australia are centred on Canberra, with Iceland and Cape Horn as their left and right extremes. By any measure, anywhere else is a long way from Australia. Its influence in the world of electronic discovery is disproportionately large. Read the rest of this entry »
When US Chief Magistrate Judge Paul W Grimm was in London for the IQPC Information Retention and e-Disclosure Management Conference recently, he mentioned the Maryland Protocol which he and others have devised for the better handling of electronically stored information in court.
Clive Freedman of 3 Verulam Buildings, the barrister who has been responsible for the actual drafting of the proposed new e-Disclosure Practice Direction as part of Senior Master Whitaker’s drafting group, made use of part of the Maryland Protocol for part of the final version of our Practice Direction, which is to be submitted this week.
There is an opportunity to hear Judge Grimm talk about the Maryland Protocol on Tuesday 9 June at 12:00 EST, when Wave University hosts a webinar at which it will be discussed.
I will miss it – I am chairing the second day of the Ark Group e-Disclosure Conference that afternoon. On the strength of other webinars in which Judge Grimm has spoken, I know it will be worth listening to.
I have just had to turn down the opportunity to speak at a conference organised by LexisNexis in Hong Kong on 20 and 21 July. The invitation was to deliver the keynote speech at the start of the first day with the heading Globalisation and Digitisation: the Rising Need for Digital Forensics and E-Discovery in Today’s World, which I would have been extremely happy to do.
My Mother’s 80th birthday party is on the previous day and my eldest son’s graduation ceremony is in Leeds on the day following. I could, with a fair wind, have made it to Leeds with two hours to spare by racing at dawn from Heathrow to Gatwick. I have done worse things – my breakfast-in-Sydney-dinner-in-Washington trip last October didn’t allow even time for an espresso between terminals at LA and, as I recounted last week, I made it from Orlando to IQPC in London just as the conference opened. I am game for that sort of thing, but not for missing my Mother’s birthday. Read the rest of this entry »
If I were to define a perfect working day it would go something like this: wake up in a comfortable hotel and take a five minute stroll to Piccadilly; sit on a platform with the two leading US and the two leading UK e-discovery judges and discuss developments in the two jurisdictions; go and see Lord Justice Jackson to discuss the e-disclosure parts of his report; take part in the premiere of your first play, a courtroom drama in which the judges are played by judges and the advocates by people whose life has been spent at the bar; then dine at Rules before going home with the sense, which others seem to share, that the disclosure world has moved on a bit that day.
It sounds all right as a way of passing the time, does it not? So that is what I did on Thursday, on Day 2 of IQPC’s Information Retention and E-Discovery Management Conference. I am but the Boswell to the distinguished set of Dr Johnsons who took part in all this and my main contribution was made months ago. I am on the Advisory Board for the conference, and Sarah Haynes of IQPC rang me up and asked which US judge should be asked to take part in the judicial panel which Guidance Software were intending to run. “Ask Grimm or Facciola” I said, much as one might say “Get Kidman or Jolie” for a film, or “Ask Rooney or Ferdinand” round to play football. Sarah rang back a few days later and said “They are coming – what would you like them to do?” Read the rest of this entry »
The article to which I am about to refer you is in fact called E-Discovery in the $50,000 Case by Conrad Jacoby and not as my heading shows it.We in the UK renamed the ancient process known as discovery of documents ten years ago and called it disclosure, as part of the frankly stupid idea that if you give something a trendy new name you somehow make it better. Sterling is now so debased as against the Dollar that the difference between 50,000 of the one and 50,000 of the other does not matter much in the context of which Jacoby writes.
How can you handle electronic documents cost-effectively in cases whose value is disproportionate to the work involved in strict compliance with the rules of discovery / disclosure? Many in the UK blame the advocates of litigation support technology, as if we are somehow responsible for creating all this stuff. It exists. It has to be dealt with if you are to comply with the rules. Pretending that your clients and their opponents do not have electronic documents has two outcomes – breach of professional duty, and unexpected costs down the line. Better, surely, to square up to the facts and develop a strategy to handle the documents efficiently. Read the rest of this entry »
Rob’s then e-discovery blog was the first resource I came across when I began to inform myself about US legal and technical e-discovery developments. We have never met, though we must have been simultaneously in the same place at events like LegalTech, but have corresponded over the years.
The resources available from the Unfiltered Orange page include a weekly update e-mail, Twitter and FaceBook. The update covers the Top 25 eDiscovery stories, and if he happens this week to have put one of mine at the top of his list (Distinguishing workplace spying from data collection), that serves merely as a prompt to do something I have been meaning to do for some time, and point you towards his site.
Identifying, culling and filtering the world’s e-discovery stories is similar in many ways to the exercises which they describe – there are a lot of them and not all are worth looking for or looking at. I have the luxury of choosing only those which interest me personally. Rob Robinson’s self-imposed brief is rather wider and I am, as always, grateful for the pointers he gives to the stories which matter.
Like sport and so much else, the idea of proving a legal case by discovery of documents is an old English concept which was adopted wherever the English had a hand in establishing a system of law. America kept it when it dumped our tea, our taxes and our King. Australia adopted it with the same enthusiasm as it adopted cricket. A couple of weeks ago, Hong Kong was host to both the Rugby Sevens and our Senior Master Whitaker talking about UK disclosure developments. Discovery is central to Canadian litigation, and Master Whitaker is due to speak about it in Singapore later in the year.
Three things unite all these countries apart from their common law heritage. The problems raised by electronic disclosure are the same everywhere; those of us involved in developing rules and best practices around the world all speak to each other; and there is a handful of suppliers whose applications are used wherever electronic data must be collected and handled for litigation or for regulatory investigation. The resulting cross-fertilisation has obvious benefits – what works in one place will probably work in another, and if an approach tried in one country is seen to have failed, then it is as well to know about it before another jurisdiction goes down the same track. The things I talk about in Birmingham or Bristol are informed by what I Iearn in Sydney or New York, and it would perhaps surprise UK judges and lawyers to know how much interest there is in those places in what happens in the UK. Read the rest of this entry »
If UK lawyers do not share the US enthusiasm about the preservation, collection and use of metadata, that is in part because they are not clear what it is and how it might be used. A forthcoming webinar will be a painless way to find out.
Guidance Software is hosting a webinar on Tuesday 24 March called The growing importance of metadata preservation in eDiscovery. As the developers of EnCase eDiscovery, whose function is the collection across corporate networks of discoverable documents and data, Guidance has an obvious interest in the metadata – data about data – which lies in and around the documents which may become evidence. Read the rest of this entry »
Litigation support providers from the relatively small UK market made a good showing at LegalTech in New York this year. Amongst them was Legal Inc who hosted a panel of luminaries moderated by Charles Christian of Legal Technology Insider. LTi now has an American Edition, compounding the sense that the UK has something to contribute to the US legal technology scene.
The Legal Inc panel consisted of Sanjay Bhandari of Ernst & Young, Matthew Davis of Lovells and Andrew Haslam of Legal Inc, with the US represented by Peter Cladouhos of Paul, Hastings, Janofsky & Walker LLP.
The advertised purpose of the panel was to draw attention to some of the pitfalls and dangers inherent within electronic disclosure that can ensnare the un-prepared, and to explain how preparing for, and meeting the demands of, electronic disclosure can be scaled for large, mid-sized and even small organisations. The UK has some relevant case law at last and that, coupled with a planned EDD questionnaire and increased judicial interest in the time- and costs-savings, suggests that the ability to handle documents and data electronically is permeating down to smaller organisations and more everyday cases.
There was something almost surreal about the discovery that the LegalTech organisers had failed to record US Magistrate Judge John Facciola’s keynote speech, given that Facciola regularly delivers Opinions castigating parties either for faulty decisions about technology or for technological incompetence. Did someone decide “Nah. It’s only that Italian guy – let’s not bother” or did someone press the wrong button on the tape recorder? Whatever the cause, it is a pity. The speech, like many of John Facciola’s Opinions, should be compulsory listening for lawyers and judges, and as much on the UK side of the Atlantic as on his.
The speech was introduced by Neil Aresty of Legal Computer Solutions, Inc. Aresty made reference to the “Christmas Eve decision” in Covad Communications v Revonet. A paragraph from that decision will suffice to set the scene and to show why Judge Facciola strikes a chord in the UK. Speaking of an archaic form of document request which ignored the last 40 years of technological development, he said:
“While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Read the rest of this entry »
One of the benefits of being linked to the companies who sponsor the e-Disclosure Information Project is the opportunity to talk to those who work for them. These are the people who are out meeting with and working with the users, both lawyers and corporate clients, and it is in part from these conversations that I keep in touch with what is happening. They may, flatteringly enough, have called me to ask for my view, but I generally get as much as I give in these discussions. Read the rest of this entry »
Only one practising UK commercial lawyer came to LegalTech in New York. Recession hit the litigation support industry before our eyes. One of the recurring themes there was that the clients are taking discovery in house. Down the road we saw some other extinct species
As if LegalTech itself were not enough, Sunday, my first full day back from New York, lasted for 24 hours, thanks to disrupted sleep patterns, a full InBox and a five hour meeting discussing potential discovery developments in Australia and AsiaPac.
You know better by now, I think, than to expect a dutiful account of LegalTech. You get from me little in the way of faithful reports of worthy sessions, no deep market analysis, no breathless interviews with industry leaders. Others, I know, sit on the special pews reserved for bloggers and have their reports filed before the speaker has made it to the bar. I got to few sessions, although I did turn up, I think, to all those I was booked to speak at. There is no shortage of industry leaders to talk to – you bump into CEOs in corridors or go up to their eyries above cloud level at the Warwick Hotel – but journalistic scoops are not really my style and I am content to wait for the press releases. I am into broader sweeps than the last big sale or the next major release. Read the rest of this entry »
As I sign off for Christmas, I would like to thank all those who have sponsored, supported or in any other way encouraged the e-Disclosure Information Project in 2008 and wish you all a Merry Christmas and a Happy New Year.
It is only a month since I did a round up to cover the Project’s first birthday. Since then, we have had yet a third new e-disclosure case in the UK, Abela v Hammonds, and LDSI has joined the sponsors.
There is already a great deal planned for next year: the conference diary is filling up; my Law Society seminar tour will take up again; there should be a good UK showing at LegalTech in New York; there are plans afoot for co-operation with US, Australian and Canadian judges, rule makers and thought leaders with, I hope; a visit to each of these countries in March/April; there is a Technology Questionnaire to launch and a Practice Direction to draft; I hope to repeat in other UK cities the talk we gave in Birmingham at which we showed judges, barristers and solicitors some of the applications which are used in electronic disclosure; Vince Neicho of Allen & Overy and I are plotting an e-disclosure conference on our own model; with the Project format now established, I am looking forward to yet more interaction with its sponsors; as well as going to see and speak to people on their own patches in the UK and abroad, I hope to entice more visitors to come to Oxford and kick ideas around on Port Meadow, as I have done several times this year. Read the rest of this entry »
A growing theme on this site which will get more important in 2009 is that electronic discovery in the US is getting to be of more interest to us in the UK. This is not because the English courts are getting more involved in e-disclosure (they are, but that is not why we are paying more attention to the US). The new interest derives from US Opinions which have wider and more universal messages than hitherto.
Americans can pound each other to bits over “spoliation” and “defensibility” and we could not be more bored. Nor do we really want to be told how to do it at a judicial level (but we love the technology, thanks). That is in part because there is a growing appreciation that we have some pretty good rules of our own if only anyone would use them, as judges are beginning to – see Digicel, andAbela ( the links are to articles of mine about these English cases). Read the rest of this entry »
Many UK lawyers and judges affect disdain for the American way of litigating and, in particular, for the way US lawyers handle electronic documents. The UK lawyers’ perception that e-disclosure is all very expensive not only confuses cause and effect – it is the existence of the documents which is the primary problem – but blinds them to the constructive criticism which many US lawyers and judges make of their own practice. The problems and most of the (largely US) technical solutions are the same. A look at the similarities in current US thinking might inform our own approach.
The recurring theme in this area in the UK at the moment is the need for two things – getting more and better information about one’s own clients’ documents and a more co-operative approach to working out how to manage disclosure so that the pursuit of justice is not buried by the costs of trying to achieve it. The main stumbling block here is ignorance – there is plenty of expensive gamesmanship being played, but much of the money thrown away is wasted because practitioners know little about the rules and less about the technology. Read the rest of this entry »
Yet another important new UK case on electronic disclosure, Abela v Hammonds, reaches me whilst I am listening to a US webinar about searching. The theme of both is knowledge, understanding and expertise – and co-operation to arrive at a proportionate solution
Men famously do not multitask well, but there is too much going on in e-disclosure at the moment to do things in neat sequential steps. I found myself this morning listening to a US webinar on the courts’ requirements for searches for electronic evidence whilst simultaneously reading a new 70 page English judgment on the same topic. This article is not a deeply considered report of either of them, but the coincidence and commonality is worth capturing. Read the rest of this entry »
The webinar anticipated in this post has now taken place. My report on it, and its fortuitous coincidence with a new UK case, can be found in my post Getting expert evidence in front of the court which also includes a link to the recorded webinar.
H5, the San Francisco company specialising in information retrieval for litigation, investigations and related information management, are giving a webinar on Wednesday 10 December at 1-2 p.m Eastern / 10-11 a.m Pacific time. The full title is Finding a better way to search: Benchmarking E-Discovery Methods.
The premise for the webinar is that lawyers are looking for ways to meet their discovery obligations quickly, cost-effectively and with minimal risk, whilst judges are attaching increasing importance to the way in which searches are conducted – not just the technology but the related sciences of e.g. linguistics and statistics. The perceived importance of this lies in the often-quoted assertion by US Magistrate Judge John Facciola in US v O’Keefe that Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. Read the rest of this entry »
The risk that contentious work might shift to arbitration or to other jurisdictions such as Germany is reason enough for us to fight to keep it here. The Commercial Court Long Trials Recommendations may have had too wide a focus. Attention to the costs of disclosure, with help from a new generation of Early Case Assessment tools and a pooling of ideas with Australia and Canada may be the next step
On 2 December, the City of London Law Society considered the impact of the Commercial Court Long Trials Recommendations at an open meeting held at Freshfields. I usually go to any such events but had not picked up that it was happening – not the only thing I was in the dark about on that day, since someone drilled through a mains cable at breakfast-time and I was without power till far into the night. I would at least have kept warm if I had gone to the meeting. I am grateful to Mark Surguy of Pinsent Masons in Birmingham for a summary of what was said. Read the rest of this entry »
Internet telephony, like litigation technology, is now accessible and affordable. Ignoring VOIP merely passes up the chance to cut your telephone bill. Ignoring litigation technology may cost you rather more. The problems, and the solutions, are the same everywhere
A male who bought his first PC shortly after they first came on the market and who has been a software developer might be regarded with some suspicion when he tries to induce others to use technology. You could look at it the other way, of course, and reckon that if someone imbued with office computer technology since its infancy still finds some of it near-magical in its power, then it might be worth a look.
This was brought to mind by two phone calls I received in close succession across midnight on Saturday. At that time of night it is the middle of the day in West Coast America and early morning in Victoria, Australia. My first call was from Browning Marean of DLA Piper US LLP in San Diego and the second was from Geoffrey Lambert of KordaMentha in Melbourne. Both were by VOIP (Voice Over Internet Protocol) and the total of two hours’ crystal-clear conversation with opposite corners of the world cost none of us anything. Read the rest of this entry »
We at last have a reported case on the scope of a reasonable search for electronic documents and on the duty of parties to co-operate. You do not need case law to validate a clear rule, but Digicel (St Lucia) Ltd v Cable & Wireless has wider implications than its facts suggest, if only in terms of spreading awareness of the rules.
I was once discussing with the US General Counsel of a multinational company the points which distinguish the CPR requirements on disclosure from those of the US Federal Rules of Civil Procedure. The specific subject was the scope of the search which is required, and I was explaining that our obligations under Rule 31.7 CPR were defined by broad notions of proportionality for which the rules provided a set of factors, whose weight was ultimately a matter for the court’s discretion if the parties could not agree. Read the rest of this entry »
The Vikings brought with them some habits which were deplored by their hosts, but they also brought technology which we turned to our advantage. We do not much like some of the practices in US civil courts, but we can certainly use the technology which has been honed in them
On 8 June 793, the first Viking long-ships appeared off the coast of Britain – “ravages of heathen men” said the Anglo Saxon Chronicle, which had recently predicted some such cataclysm. The Vikings did a bit of raping and pillaging and pushed off home. The next year they were back, but were beaten off, retiring hurt with their leader dead, many drowned in a storm and others killed on landing.
Their technology, particularly in ship-building, was way ahead of its time, and improved rapidly to reflect the experience of the sailors and as an aid to the rough and tumble of their work. Not only were the ships able to face the roughest storms, but they had shallow draughts and were light enough to carry, both useful developments which were enhanced to cope with their raids. Nor were their victims an uncivilised and impoverished race – the visitors would hardly have bothered to keep coming back if they had not hoped to profit from it and, however attractive the ladies of the North-East, their charms hardly warranted a risky annual journey. Read the rest of this entry »
Details are coming in of the Masters Conference taking place in Washington on 16 and 17 October. This year’s title is Viewing E-Discovery Through the Corporate Veil – see the Masters Conference web site for more details.
The focus is on litigation in the global arena with the Foreign Corrupt Practices Act (FCPA) as well as the Federal Rules of Civil Procedure (FRCP) at the forefront. Topics include:
Cross Border Investigations and Discovery Management
Cost Effective Internal Investigations in the FCPA Era
Litigation Readiness
Real-life Implications of the FRCP
The Subprime Mortgage Meltdown
Corporate E-Discovery Budgets
New Technologies for Streamlining E-Discovery
Creating and Implementing the Corporate IT Structure
The US courts are laying increasing stress on the technology and the methodology used to find documents relevant to a case. Even US lawyers are pulling the blanket over their heads at the implications of this, and UK lawyers will do the same if we just leave them to read the US judgments. We have a very different set of aims over here, but the technology and the principles developing to meet the FRCP challenge are exactly what we need, just turned to different purposes. The key term is “transparency”.
I have shied away from writing about the judgments of US courts which are the all-consuming subject of the year in American litigation circles. US v O’Keefe, Equity Analytics v Lundin and Victor Stanley v Creative Pipe all deal with the importance of accurate and reliable searches – embracing both the technology and the skill with which it is used – and between them, in their slightly different ways, appear to raise the level of equipment, qualification and skill needed to engage in the business of giving discovery / disclosure of documents. Serious stuff, in a country where so much of the focus appears, to UK eyes at least, to be on the technology and the methodology at the expense of the search for justice – with the emphasis on the word “expense”. Read the rest of this entry »
As the dust settles on the 2008 Socha-Gelbmann Survey, it is perhaps useful to pick out a couple of the conclusions which particularly affect UK corporations, law firms and suppliers. As I have reported elsewhere (Project sponsors ranked by Socha-Gelbmann) those who sponsor the e-Disclosure Information Project were well represented in the rankings tables, with Anacomp, Autonomy Zantaz, Epiq Systems, Guidance Software, LexisNexis and Trilantic all appearing in one or more of the charts (the links, incidentally, are to their respective press releases on the subject).
George Socha and Tom Gelbmann have written a commentary on the market as it appeared to them following this, their last survey in this form. Commentary on commentary does not necessarily add value, but I highlight what they say about analysis, about a perceived shift from services to software and about staffing up to enable law firms to meet the challenges and take the opportunities which exist in this market. Read the rest of this entry »
I have for some time been mentioning Australia as the jurisdiction to watch for developments in court rules and procedures relating to case management and, in particular, the handling of electronic documents.
They warrant a closer look on my part, not least because I have been invited to speak at Ark Group’s Corporate eDiscovery Conference Preparing your organisation for eDiscovery in Sydney on 13-15 October 2008. My main subject will be Responsibility for eDiscovery, which allows me to bring together sources as diverse as the UK Commercial Court Recommendations, the US Qualcomm sanctions case, the recent US cases (O’Keefe and Victor Stanley) on the use of search technology, and the express requirement in Australia to the effect that lawyers who appear before the courts ought to know something about relevant technology or get suitable help when they do not. Read the rest of this entry »
I had hoped by now to have written up the talks which HHJ Simon Brown QC and I gave to two groups of judges in the last two weeks, but time is against me and a short summary will have to do for now.
The audiences were first the Designated Civil Judges and then the Specialist Judges. The e-Disclosure Information Project, of which this site is the most obvious tangible output, began as an exercise in helping judges at the junction of two technical subjects – the CPR and technology. The first of these has been unchanged since 2005, but remains shrouded in a mystery which it does not deserve. The second changes all the time. My role is to try and unshroud the rules and to help introduce the technology to those who need it or who need to know about it if proportionate orders are to be made about disclosure. Read the rest of this entry »
Although the conferences referred to here were both in London, they were not specifically about electronic disclosure in the UK. There was plenty, though, to interest those on both sides of the Atlantic, not least the possibility that part of our approach might be exportable
Jason Baron, the US National Archives’ Director of Litigation and a well-known commentator on all things to do with electronic disclosure / discovery, has beaten me to a full commentary on two of the conferences which I attended recently. Since he has done it so well, and since I am still out of my office speaking more than I am in my office writing, I will gratefully point you to his excellent article A Tale of Two London ESI Forums on Ralph Losey’s e-Discovery Team site.
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.
Posted by Chris Dale 
