Identifying opportunities at the second ALM – ILTA Legal Technology Summit in Hong Kong

April 28, 2014

AsiaTechSummitALM and ILTA brought their second Asia Legal Technology Summit to Hong Kong in March. I make no apology for reporting on this event several weeks after it took place. I went on a long trip to the US almost immediately after it, and UK events have kept me busy since. The output includes photographs and video as well as words, and these take time to process. Besides, these big events have significance which lasts beyond the day itself. As it happens, I am back in Hong Kong this week for another legal technology / eDiscovery event; the fact that Hong Kong can support two such events so close together is itself interesting.

Henry DickerAs with last year, the event was held in the JW Marriott in Hong Kong, one of the more attractive venues for such conferences. Welcoming speeches were made by Henry Dicker, CEO of LegalTech (right), and by Barry Wong of sponsor Consilio (below). Both emphasised the increasing opportunities which Hong Kong offers to those with expertise in electronic discovery and other areas where legal services matter.

Barry WongConsilio, for example, is a global company with offices and data centres in North America, Europe and Asia whose growth in AsiaPac reflects the fact that big clients, wherever their formal corporate headquarters, conduct business everywhere and, increasingly, in Asia. To some extent, the US heritage is valuable, not least because of its business, regulatory and technology leadership; that must be combined, however, with an understanding of local culture and practice and a sensitivity to the fact that US commercial imperialism does not necessarily travel well in undiluted form.

A recurring theme at the conference, therefore, was that business and legal offices in AsiaPac are a) much the same as elsewhere in many ways, b) are different, for all sorts of cultural reasons which are not easy to detect and c) can benefit from the experiments and the learning which has gone on elsewhere. You need feet on the ground as Consilio has, not the occasional parachutist from the US, for this to work. Read the rest of this entry »

Justice takes a bashing but litigation work goes on

April 2, 2014

To say, as I did in a recent article, that that “civil justice in the UK has plunged off a cliff” is not the same as saying that civil disputes are in decline. Litigation lawyers, at least at the mid- to high level, seem to be busy enough, as do most of the London-based eDisclosure providers. The Jackson Reforms, now a year old, have positively generated work for some, although much of the focus has been more on procedural matters than on evidence and issues. Part of this, conveniently labelled “Mitchell”, has been negative, the opposite of the “justice” which the overriding objective requires; part of it, and particularly the eDisclosure aspects, reflect the attention which the rules now require on the sources, the methods and the costs of disclosure. One can deprecate the Mitchell aspects whilst thinking it right that parties are being required to pay early attention to the evidence and to the prospective costs.

Whilst in the US recently, on a tour which embraced both eDiscovery events and a short holiday, I wrote an angry article (“blistering” was amongst the comments I received) on the state of British civil justice. If that seems an odd way to spend a holiday, well, the times are odd and it annoyed me. Better out than in as they say, so I wrote to get it off my chest. The article was headed The Jackson consultation responses pull no punches but Grayling and the MoJ will ignore them.

The article had three targets – a Lord Chancellor who seems ignorant of the basic concepts of justice, a Ministry of Justice staffed by people whom I described as “standard issue overpaid time-servers and… academics who have failed to hack it in the strenuous world of university life”, and senior judges whose understanding of the practicalities of business life is defined by their lifetime experience of working for very big firms, on very big cases, for very rich clients.

I referred to one or two of the responses to the Civil Justice Council’s consultation, mainly to show that my observations were derived from the daily experience of those who have to deal with the consequences of these things. I was at pains to draw attention to differences (identified in some responses) between Lord Justice Jackson’s original recommendations and the position in which we now find ourselves. Quite apart from the fact that he had nothing to do with (for example) the reduction in legal aid, Lord Justice Jackson specifically recommended investment in court systems; whilst he was keen to encourage compliance with the rules, it was no part of his plan that we should have the climate of fear and uncertainty which derives from Mitchell. Read the rest of this entry »

The Jackson consultation responses pull no punches but Grayling and the MoJ will ignore them

March 19, 2014

There is a palpable sense that civil justice in the UK has plunged off a cliff in the short time since the implementation of the Jackson reforms. A few of the responses to the Civil Justice Council’s consultation have been published. They make grim reading, particularly as we can be reasonably sure that neither the Lord Chancellor, Chris Grayling or anybody at the Ministry of Justice will actually read them or give a toss what anyone thinks about the ruin of the civil justice system.

Although some commentators blame Lord Justice Jackson personally for this (and even talk of a “right-wing conspiracy”), most are willing to acknowledge that there are wider forces at play here and that what we are left with is not what Jackson intended. How do we object? If we are outsiders we are ignored. What insider will raise his head above the parapet? What will happen to him or her?

We have a “Lord Chancellor” who knows no law, who has no feel for what is important about justice, and who just wants to deliver cuts to George Osborne like a small dog bringing a ball to its master. It is said that the senior judiciary decline to refer to Grayling as “Lord Chancellor” out of contempt. I begin to wonder what we should be thinking of the senior judiciary.

Grayling’s personal conduct should be irrelevant: the supine little people who supervise MPs’ expenses turned a blind eye to Grayling’s use of Parliamentary expenses to buy an unnecessary flat, so we should ignore it, notwithstanding that equivalent conduct by a benefits claimant would have landed him in jail; bare-faced lying is a natural trait for a politician, and while we might hope for better in a holder of the ancient office of Lord Chancellor, we get what are given. So we should ignore all this and judge Grayling solely by what he does; that is enough to hang him anyway. Read the rest of this entry »

The Commercial Litigation Association of Ireland launches a Good Practice Discovery Guide

March 10, 2014

As will be clear from other references on this site, I am interested in developments in discovery practice in any jurisdiction for which eDiscovery is required by the rules of local civil procedure.

My most recent involvement in this respect was in Hong Kong where I took part in a panel discussion on the proposed Hong Kong eDiscovery Practice Direction which is closely modelled on Practice Direction 31B in England and Wales.

The Commercial Litigation Association of Ireland has just released a Good Practice Discovery Guide which you can get from the CLAI website here. As with the Good Practice Guide to eDiscovery published last year (I wrote about it here) Mr Justice Frank Clark has been closely involved in its production. Another common feature between the two guides has been the involvement of Simon Collins of Ernst & Young Ireland.

Mr Justice Clarke is one of the speakers at the IQPC Information Governance and eDiscovery Summit to be held in London on 13-15 May where we will have the opportunity of hearing from him about eDiscovery developments in Ireland.


Washington and New York to Mitchell via privacy, Singapore and Lobachevsky

February 17, 2014

The problem with running a website which offers news and updates is that people notice when it lies silent – the essence of news is that it is new. In fact, I have never aspired to timeliness and, as I say often, if it is important now, it will be important in a month’s time. This post supplements a brief note which I put up last week. Most of it is about Washington and its wonderful memorials, about the week in New York with my panels on eDiscovery technology and privacy, and about the things which got in the way when I got home. That includes some ruminations on the fall-out from Mitchell v NGN, on the unpleasant and economically-illiterate thug who carries the proud title “Lord Chancellor” and his minions at the Ministry of Justice, and on the decline of London’s aspirations to be a forum of choice for international litigants, with side references to Hong Kong (where I go next) and Singapore. There is also a bit about plagiarism illustrated by Tom Lehrer. You get variety here, if not necessarily thematic consistency.

I was at LegalTech in New York, the biggest eDiscovery industry show in the world. This was my eighth LegalTech and I know the form by now – back-to-back meetings, a couple of panels to sit on, five party invitations every night, dinners with varying degrees of learning and entertainment thrown in, and someone to talk to round every corner. This year brought the added element of sudden snowfalls leading to deep pools of slush at every crossing, particularly tiresome when your meetings alternate between the Hilton on one side of Sixth Avenue and the Warwick Hotel on the opposite corner.

Our attempts, some four months earlier, to book hotel rooms were defeated by some sporting event which apparently drew most of the US population into New York for the weekend. The cost of flights to the US falls steeply if you include a Saturday, so we went first to Washington D.C. – “we” being me, my wife Mary Ann and our youngest son William. The weather was fine and, as always, we were drawn first to the war memorials. Read the rest of this entry »

A reporting hiatus in a bustling eDiscovery / eDisclosure world

December 18, 2013

You may have noticed that my written output has slowed down a little recently. Before somebody writes in to ask why (they do, you know) it may be worth giving a few lines of explanation. Put briefly, UK procedural developments have hogged the limelight, whilst conference events, big issues like privacy, and the daily flow of press releases keep on coming. Those of us who are interested, in whatever capacity, in developments in electronic disclosure / eDiscovery, in case management, in information governance and in data privacy can hardly complain.

The big subject in the UK at the moment is the fall-out from the Court of Appeal’s judgment in Mitchell v NGN (case report here). Whilst this may appear to be a narrow point to do with a defined penalty for a specific failure, the Court of Appeal took the opportunity to send out much broader messages about the court’s policy on default.

Screen Shot 2013-12-18 at 11.10.44

The result has been a flood of articles and opinions, the majority of which have attacked the judgment. There is plenty to attack, but the blunt fact is that we are where we are. We can criticise the policy direction, but there are cases in hand, case management conferences coming up, and decisions to be made in the climate as we find it.

Trying to write about all this requires a degree of focus and concentration which is quite hard to find as articles by others fly in and as we hear of the first of the post-Mitchell judgments. On the whole, I write for the future and not for tomorrow, and I would rather take my time over my article (articles, as I think it will be, one on the context and one with some practical suggestions relating to electronic disclosure).

Screen Shot 2013-12-18 at 11.06.46

If you want to start catching up with what is being said, turn to a list of relevant articles made on his excellent Civil Litigation Brief by barrister Gordon Exall. There is some good stuff in there, but some inevitable repetition between the many contributors to the discussion. There must be a text analysis app which could identify unique points and produce a summary. Read the rest of this entry »

Second Annual New Zealand eDiscovery Conference on 19 March 2014

November 19, 2013

New Zealand is quietly getting on with improvements to its civil procedure rules, supplementing its Discovery Rules of 2012 with a new Electronic Bundles Practice Note.

Andrew King of eDiscovery Consulting in New Zealand has announced the date for the Second Annual New Zealand eDiscovery Conference following the success of last year’s inaugural event. It is 19 March in Auckland.

There is an article about it here. It is being run in conjunction with Ernst & Young and the speakers include Browning Marean from DLA Piper US and His Honour Judge David Harvey.

I had just committed to being in the US in that week when I found about this event, and will not be able to attend – a pity, since New Zealand has been active in the development of good eDiscovery practice, and Judge Harvey is one of the leading judicial thinkers on electronic discovery, electronic evidence, and the use of technology by lawyers and courts. Here is a link to an article which introduces and links to his paper Judging e-Discovery Disputes, which he presented at the Courts Technology Conference 2013 in Baltimore (I aim to write properly about this when the tide goes out a bit).

If I cannot be in New Zealand in March, my consolation is that I may instead get to the other jurisdiction of growing interest in eDiscovery terms, Canada. I wrote recently about the document review centre which Epiq Systems have just opened in Toronto, and that and other factors suggest that a visit to Canada is well overdue.

Perhaps I will make it to New Zealand in the following year.


Article from Mayer Brown JSM on eDiscovery developments in Singapore and Hong Kong

October 4, 2013

For those who missed it, I referred in a recent article to plans by the Hong Kong judiciary to bring forward a practice direction for the management of electronic information in civil proceedings, starting with the Commercial List.

As I said in that article, my source of information about this is Menachem Hasofer, a partner in Mayer Brown JSM in Hong Kong. Menachem Hasofer is, with others, the author of a useful summary of eDiscovery developments in Singapore and Hong Kong which is recent enough to include reference to the proposed Hong Kong practice direction.

I have been spending more time in Hong Kong than in Singapore recently. I hope that opportunity will arise shortly to redress the balance and pay another visit to Singapore.


Hong Kong judiciary working on a pilot scheme for management of electronic documents

October 3, 2013

I mentioned when I got back from Hong Kong that the eDiscovery roundtable organised by Epiq Systems and Asian Legal Business had been told of an interesting development – that the Hong Kong judiciary are working on a pilot scheme for the management of  electronic documents.

This was brought to us by Menachem Hasofer, a partner at Mayer Brown JSM, one of the most active law firm promoters of proportionate eDiscovery in Hong Kong.

There has not been any formal announcement of this work, but the following wording has been approved for release:

“The Hong Kong Judiciary is actively engaged in creating a pilot scheme for discovery and inspection of electronically stored documents in the Commercial List. The pilot scheme is expected to be implemented by way of a Practice Direction (PD) to be issued in the first quarter of 2014. Preparation of the PD is presently a work in progress. The Judiciary expects to release a draft of the PD for consultation in the final quarter of 2013, at which time it will hear views from the wider legal profession and other concerned stakeholders on the proposals contained in the consultation draft of the PD.”

This is obviously good news for those who believe that it is very much for the court to take a lead in encouraging the proper discovery of electronic documents within the bounds of proportionality. It makes sense for the pilot scheme to be limited to the Commercial List to begin with.

I look forward to getting involved in the consultation later this year and will bring more news as I have it.


Hong Kong (again) with Epiq and pending events with iCONECT, Cicayda and kCura

September 18, 2013

I have just been back to Hong Kong, this time to moderate a panel of litigation lawyers brought together by Thomson Reuters’ Asian Legal Business and by Epiq Systems. Epiq’s Celeste Kemper was in the chair.

Our agenda was cut from under our feet as we began our session by the news of pending developments in the Hong Kong civil procedure rules relating to the management of electronic discovery. The ad hoc agenda which followed was very much more interesting as a result. I will write more about this in due course. I also had lunch with Paul Taylor and Barry Wong of Consilio, as good a way as any of keeping up with what is going on in Hong Kong.

I came back in haste (well, 26 hours from door to door), mainly so as not to miss too much of the family holiday in Cornwall. I write this from a kitchen on a windswept headland from which sea and sky merge in varying shades of grey washed down by copious amounts of rain.

Towards Polzeath

It is good to be back here. Most of our holidays recently have been planned around a foreign conference and, whilst we have seen some wonderful (and generally sunny) places as a result, I have missed the Cornish mist. We are here partly because this is where we have always come (in my wife’s case since the 1950s) and partly because her niece is getting married at St Enodoc, an ancient church recovered from the sand in the mid-19C where John Betjeman is buried.

St Enodoc

I wrote with enthusiasm recently about a series of webinars being given by iCONECT whose first one is called Social Communication: Is There Anything Worth Requesting?   Its theme is the prevalence of new data types created by new kinds of device by new applications and which accumulates around us without really thinking about it. The ease with which we can work from anywhere (a Cornish clifftop, for example) brings enormous benefits, but it brings also the risk that we create data that we do not even know we have got in places unknown to us. That raises all sorts of issues, amongst them the eDiscovery implications.

It was, perhaps, a mistake to write so enthusiastically about this webinar, because the immediate reaction was an email from Ian Campbell at iCONECT inviting me to take part in it. The upshot is that I am speaking in iCONECT’s Webinar at 1.00pm EDT on Wednesday 18 September (that is TODAY) in the company of Ian Campbell and Thomas Barnett of Saito Sorenson LLP. More information, with links to the registration page is here.

I think that I have cracked the comms challenges of operating from here. The next hurdle is to keep the holiday house quiet for the hour’s broadcast – I can hardly turn everyone out into the rain.

Two other unexpected invitations came my way just before I left. One is to take part in a predictive coding panel at kCura’s Relativity Fest in Chicago on 8 October. Having committed to travelling that far, it made sense to volunteer also to look into Cicayda’s interesting RELEvent – the un-conference which takes place in Nashville at the same time. Cicayda’s Roe Frazer promptly put me on a panel for Monday 7 October – about what and with whom I know not, but it sounds fun anyway.


eDiscovery in New Zealand – the requirements of the Discovery checklist

August 30, 2013

As in the UK and other jurisdictions, civil litigation in New Zealand is increasingly focusing on agreement and cooperation, enforced if necessary, between the parties as to the scope and execution of eDiscovery.

An article called Reinforcing the requirements of the discovery checklist on Andrew King’s NZ E-Discovery Blog summarises what those requirements are in New Zealand, listing the key points as identifying:

  • Who are the key individuals in the dispute;
  • What you have and where it is located;
  • What is important to the matter in dispute; and
  • How this information can be provided in a way which is accurate, efficient, and cost-effective.

It beats me how anyone, in any jurisdiction, can think it is possible to embark on any significant litigation without getting his or her head round this information, which seems to me no more than common sense.

Andrew King points to the use of an Electronic Documents Questionnaire as the model required in some UK litigation as a structured way of assembling and then exchanging the relevant information.


Case Management Conference Notice in the Birmingham Mercantile Court

August 13, 2013

Birmingham Mercantile Court has long been a leader in the development of guidance and procedures for the lawyers who appear there. This is largely thanks to the presence there of His Honour Judge Simon Brown QC who takes the view that lawyers are entitled to know in advance what is expected of them as a corollary to the courts’ expectation that lawyers will comply with their obligations. It was, of course, Judge Brown who made the observation, in his judgment in Earles v Barclay’s Bank plc, that “those practising in civil courts are expected to know the rules and practice them; it is gross incompetence not to”.

Judge Brown has taken a lead with the development of a Mercantile Court website, the drafting of standard orders (which serve the purpose, inter alia, of making sure that nothing is overlooked by the parties or the court) and in the development of the costs management regime which is now enshrined in the rules. Read the rest of this entry »

Battle over costs budgeting for high-value commercial cases

August 2, 2013

Here is a battle to keep out of, so I simply pass on the facts as they appear in an article by John Hyde today in the Law Society Gazette. Well, a bit more than pass them on, perhaps, but I will duck any attempt to take sides. Not really, anyway.

The article is headed City lawyers plead to keep budgeting exemption. The context is the decision, made during Lord Justice Jackson’s consultation period, that the Commercial Court should be exempt from the costs management and budgeting provisions which were to apply elsewhere. It is possible that the exemption was a pragmatic concession, leaving out the Commercial Court because it was going to be too tiresome to fight about something which had the potential to stand in the way of broader advances. It looked similar, to my eyes, to a battle commander’s decision to leave a strong fortress unstormed whilst pressing on with the rest of the campaign.

It was not just the Commercial Court judges who were against costs management. Many of the lawyers who bring high-value claims to the Commercial Court were strongly opposed to the principle of budgets, asserting that their clients weren’t interested in them; the nature of Commercial Court litigation, they said, was such that budgets would be time-consuming, expensive and of little value. These are the same arguments which are being run now, according to John Hyde’s article.

If I appear cynical about this, it is partly because of what happened after the new Rules passed into law, itself only a few days before the implementation date. At that rather late stage, the judges of other divisions with high-value cases became alerted, apparently for the first time, both to the proposals for cost budgeting and to the exemption won by the Commercial Court (the rest of us, I should observe, had known of the costs management proposals for a year or so by then). There followed what was, by judicial standards, an unseemly scramble, with the Chancery Division and certain specialist courts apparently basing their late claims for exemption on a kind of protectionism – if the Commercial Court did not require budgets, then parties would take every opportunity to issue their proceedings in that court, it was asserted, leaving their Lordships in the other divisions straightening their pens and scratching under their wigs in empty courts.

To me, this looked rather like supermarkets trying to restrain the grant of planning permission for a rival, and had little to do with justice, or with commercial reality for most clients for whom a litigation project is no different in kind to any other project. If you plan a new building, seek to acquire a company, or open a new line of business, you do an analysis of risk, cost and benefit. That may change as time goes by, but at least the decision has been made on an informed, prudent and defensible basis. It is hard to see why litigation is any different.

It is clear, however, that many high-end commercial litigation solicitors think otherwise, including some whose opinion I respect, and I am not going to get into an argument in which principle conflicts with the experience of those who deal with high-end clients and their litigation every day. I will observe only that we do not seem to have heard from any of these clients in this dispute. What do they think about the idea of budgets from their own lawyers and from opponents?

According to the Gazette article, a decision will be made in the autumn.


Good Practice Guide to eDiscovery in Ireland

May 1, 2013

Irish civil litigation requires discovery and therefore electronic discovery. An informal group called The eDiscovery Group of Ireland has been working for some time on a Good Practice Guide to Electronic Discovery in Ireland, and Version 1.0 was published recently. The members of the Group are listed on page 2 of the Guide.

This is an interesting jurisdiction with all to play for. Mr Justice Frank Clarke, with whom I have the occasional pleasure of doing panels and interviews, does not understate it in the opening line of his forward which reads “It can, I think, be said that Ireland has been late in addressing eDiscovery.”

The important point, he says, is that “the costs associated with complying with disclosure obligations… do not become a barrier on access to justice”. That message can now be heard in every relevant jurisdiction.

I would have gone to the  launch of the guide had I not been engaged in a conference elsewhere. I will come back to this.


A Hong Kong eDiscovery snapshot in the company of Epiq Systems

November 27, 2012

On the surface, my area of professional interest looks pretty narrow. When I launched the eDisclosure Information Project, its proposed scope was implied by the word “eDisclosure” – only the civil jurisdiction of England and Wales uses the term “disclosure”, and I set myself the task of carrying information between courts, lawyers, clients and providers in that narrow context. That proved limiting very quickly: civil litigation is only one of the reasons why parties need to identify, analyse and review electronic information, and England and Wales is only one of several jurisdictions which impose such requirements. The US, Australia, Singapore, Hong Kong, Canada, New Zealand and Ireland have relevant obligations in civil litigation and they – the US in particular – export those obligations by expecting foreign parties to comply with their domestic rules when they litigate in US courts or fall within the powers of a regulator or state enforcement body.

That brings in countries with no discovery tradition, including EU countries and those of the Asia-Pacific region, such as China, who have increasing amounts of trade with the US but whose data protection and privacy laws, as well as culture, are inimical to common law discovery demands.

I could purport to cover all this by sitting at home in Oxford distilling what I find on the Internet, and communicating with people around the world by email and video-conferencing calls. That would certainly be easier than what I actually do, which is to get on a plane to go and see things for myself. I don’t kid myself that I become expert in a jurisdiction by dropping in from time to time, but the “carrying messages” part of my role is better fulfilled if I go occasionally to talk with (not just talk to – the listening matters more) people who practice in other places. That took me to Hong Kong for a quick visit to Epiq Systems there earlier this month.

Epiq Systems

Epiq Systems has three business activities, of which the eDiscovery solutions component (the others are bankruptcy solutions and class-action solutions) plays an ever-bigger part in each succeeding year’s accounts. It has grown from being a software-led company (with its processing tool eDataMatrix and review tool DocuMatrix), to being a broadly-based eDiscovery consulting company offering forensics and collections, processing, document prioritisation and document review services. Its first non-US office was in London, which is where I came across it, and it subsequently opened an office in Hong Kong. Epiq uses Equivio’s Relevance product (now part of Equivio Zoom) for predictive coding and document prioritization, and recent acquisitions bring it a wide range of review tools, including kCura’s Relativity, iCONECT and Concordance FYI together with expansion of its managed review services. Epiq’s most recent development has been the opening of a document review service in Hong Kong, allowing it to offer a full range of consultative, technology and review services in the Asia-Pacific region. Read the rest of this entry »

The main messages from eDiscovery Ireland 2012 in Dublin

November 2, 2012

I have written an introductory piece which gave a context to the excellent eDiscovery Ireland 2012 conference which took place last week in Dublin – see eDiscovery in Ireland – coming from behind gives opportunities to get it right. The overall message from that is that there are opportunities for a jurisdiction which has litigation of all sizes, from major financial, governmental and commercial disputes downwards, to devise rules and procedures specifically to focus on case management generally and the costs of electronic discovery specifically. The latter can often consume more than half the total budget for a case, and  there is growing awareness in Ireland that its management cannot be left to drift following rules devised for a different age.

In this article, I summarise the main points made in the sessions which I attended. My earlier article distilled some of the overall conclusions from the day. Most of them are applicable in any jurisdiction.

Primer Session: Introduction to eDiscovery – Dr Vivienne Mee of Rits Computer Forensics and Lisa Broderick of DAC Beachcroft

I did not attend this session, but I commend the idea of introducing a conference with such a primer, and in any jurisdiction.  It would be easy to assume, for example, that all US lawyers and judges spring fully-formed into a knowledge and understanding of eDiscovery principles and that they all start from some higher level than the rest of us. That is far from the case, and pitching things at the right level for the audience is one of the challenges of speaking on the subject.  An introductory session allows the subsequent speakers to assume at least a minimum level of knowledge.

One year on – the Changing Face of eDiscovery–The Hon Mr Justice Frank Clarke

The “year” referred to in the title of Mr Justice Frank Clarke’s session is the twelve months since the first eDiscovery Ireland conference, a year which has seen his elevation to the Supreme Court and the development of a procedural guide on discovery which is almost ready for publication.

Mr Justice Clarke opened with what may be the single most important point to get across to lawyers.  Studies in the US have shown that, properly used, technology is more accurate than manual search and review (with the emphasis, of course, on “properly used”). We need to develop more trust between lawyers and IT professionals and it may be that some research could be undertaken on Irish cases which would develop the necessary degree of trust.

Mr Justice Clarke’s second, and equally significant, point was that no system is going to be perfect. The obligation, as a matter of law, is to take all reasonable steps, and innocent mistakes are unlikely to have serious adverse consequences.

Parties may be risk of not recovering the costs if they did not use the best methods, he said, and “best” included cost considerations. It is open, he said, to a party to say “You did it in a stupid way. Why should we have to pay €600,000 when you could have done it for €250,000″. Read the rest of this entry »

eDiscovery in Ireland – coming from behind gives opportunities to get it right

October 30, 2012

There is a long-running quiz in the Sunday Times called Where Was I? Geographical, historical and literary information is given and two questions are asked, one of which is usually “Where was I?”. Let’s try the same with the conference which has just closed in Dublin (and yes, I know the answer is in my headline).

One speaker opens his session by sharing a video clip of a horse (the speaker is a co-owner) winning the Irish Grand National. The speaker who preceded him, a judge of the Supreme Court, turns out to have been a steward at the race. Where was I?

The answer, of course, is Ireland, where there has always been a close connection between the bar and the turf. The co-owner was Tom Gilsenan, who is co-owner also of document management company Informa. The horse was Lion Na Bearnai, or ‘Fill in the Gaps’ who, at 33-1, was not necessarily expected to win the race. Mr Justice Frank Clarke was one of the stewards.

If eDiscovery were a race between jurisdictions, then Ireland would not necessarily start as the bookies’ favourite. Coming from behind, however, is no indicator of final position, as you will know if you watched Frankel stroll out of the starting gate at Ascot last week.  If Ireland’s civil litigation system is to move to the front rank then, on the strength of his recent outings, Mr Justice Frank Clark will be its steward. Read the rest of this entry »

No disclosure in New South Wales Equity Division without exceptional circumstances

September 11, 2012

I have referred before to Practice Note SC EQ 11 in the Equity Division of the Supreme Court of New South Wales. Its key paragraph reads as follows:

The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure.

I refer to it again because I have two panels coming up involving Australian judges. On Wednesday of this week I am at IQPC’s Information Governance and eDiscovery for Financial Services Conference at Canary Wharf, London. My first panel consists of the UK’s Senior Master Whitaker and the Honourable Justice Robert McDougall of the Supreme Court of New South Wales.

Next week, I am at IQPC’s Information Governance and eDiscovery Strategy Exchange in Washington, where I am moderating a large judicial panel (with judges from the US, the UK, Ireland and Australia) which includes the Honourable Justice John Sackar of the Supreme Court of New South Wales. I intend to ask both of them about the Practice Note.

We obviously want to hear how it is working in practice – my understanding is that many, if not most, of the applications made under it have failed either because they were premature or because the applicant did not make a case for “exceptional circumstances”.

I also hope to provoke a discussion with wider implications – whilst it seems unlikely that many other jurisdictions will follow the lead taken by the New South Wales Equity Court, it will be interesting to challenge the opposite idea – that parties must collect and disclose large volumes of documents which no one will ever read, at prohibitive expense.


Epiq Systems: document review in Hong Kong, Zoom from Equivio and covered in eDJ

August 14, 2012

eDiscovery provider Epiq Systems seems to be popping up all over the place at the moment. Grouping the various sources together has the benefit, for me as well as for them, that those new to this subject can see how many eDiscovery corners are touched by a major player in the eDiscovery / eDisclosure market. This is not just a technology matter – services, processes and thought-leadership all contribute to tackling a business problem which is not going away.

I have already written about Epiq’s Q2 results which showed Epiq’s eDiscovery segment contributing $42.7 million to its record operating revenue for the quarter. My post reported Epiq’s expectation of “continued double-digit operating revenue growth for eDiscovery in the second half of the year”. The subsequent announcements covered here go some way towards justifying that optimism. I reported each of them briefly as they came along on Google+, but they are worth expansion.

Epiq opens Hong Kong Document Review Centre

Epiq has followed its recently-opened new document review facility in Washington (see Huron and Epiq expand managed review and legal staffing in Washington) with the creation of a similar review centre in Hong Kong.

The press release is here. It quotes Laura Kibbe, Epiq Systems’ Managing Director of Document Review and Expert Services as referring to the provision of “secure, scalable, cost effective review and staffing services wherever they are needed,” and to Epiq’s enanced ability to manage review teams in multiple jurisdictions simultaneously.

Why should companies need such a service? Why, perhaps more pertinently, is it of interest to lawyers who have historically made money from document review? Read the rest of this entry »

Notes from Hong Kong: comparative eDiscovery regimes

July 2, 2012

This is a continuation of a series of roughly chronological mini-posts following my recent visit to Hong Kong.

Craig Carpenter of Recommind was the moderator of a panel comprising Browning Marean of DLA Piper, Jeff Lane, a partner at King & Wood, and Alfred Wu, a special counsel with Fried, Frank. The session’s formal title was Fitting defensible collection into legal, risks, compliance and governance strategies. It was this panel, more than any other, which highlighted the differences between the US and and other jurisdictions. You could almost hear the sharp intake of breath from the US people present as Jeff Lane described the discovery duties of a lawyer in a jurisdiction which does not treat every opponent as untrustworthy, handles very few cases electronically, and has no formal concept of legal hold, but seems somehow to get by as we do in the UK.

HK panel - Carpenet-Marean-Lane-Wu

Was it something I said? Close inspection of their eyes shows that it is not me at whom they are staring so intently.

Although Hong Kong courts think of of themselves as high-tech, and although Hong Kong has a technically responsive society, a review of the rules in 2009 did not make specific provision for electronic discovery. 99% of Jeff Lane’s cases do not involve eDiscovery as between the parties, although technology may be used as between lawyer and client to establish what exists and to refine and collect it. The court has discretion to approve or order any method it thinks appropriate for giving discovery; one of the court’s aims is to encourage a less adversarial approach. Read the rest of this entry »

Singapore seeks SaaS discovery solution as London barristers set up shop there

July 2, 2012

The two subjects which comprise my heading are not directly related to each other save that they both point to Singapore’s continuing consolidation as a dispute resolution centre.

The Singapore Academy of Law is inviting proposals from companies able to provide eDiscovery software as a service (“SaaS”) for law firms and organisations in Singapore. The notice about it is here with links to the formal call for collaboration.

As the notice says, the ambition is to provide services enabling law firms and clients to identify and manage large volumes of e-mails and other electronic information for use as evidence in legal disputes.  As I understand it, this is not intended to be mandatory or the only permissible solution for those who have their own software or who prefer to instruct a full service electronic discovery service provider with their applications of choice. The ambition is to encourage law firms with mid-sized and smaller cases to have access to the latest technology.

There is a clear policy here, and it is one which is consistent with recent developments in the Singapore practice rules relating to electronic discovery (I wrote about that here). The Singapore authorities are in a position to drive change in a way which other jurisdictions can only dream of, partly because of Singapore’s size, partly because it can afford to invest for the benefit of litigants generally, and partly because it is driven by judges who are ambitious to make this succeed. Read the rest of this entry »

Australia, New Zealand and Hong Kong claiming eDiscovery attention

May 2, 2012

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. Read the rest of this entry »

New Zealand’s new Discovery Rules and Electronic Discovery

April 18, 2012

New Zealand introduced new discovery rules in February 2012, making it the most recent common law jurisdiction to exercise closer control over how the lawyers and courts conduct the management of discovery – which inevitably means largely electronic discovery.

His Honour Judge David Harvey is a New Zealand District Court judge. I met him at the excellent Singapore conference on Electronic Litigation last year and we have kept in touch. He has written an article jointly with Daniel Garrie of Law and Forensics LLC and called New Zealand’s New Discovery Rules and Electronic Discovery which summarises the new rules and which has been published this week by the UK Society for Computers and Law.

I hope to come back to this subject, but meanwhile point you to this interesting description of developments in a jurisdiction which, by standing back for a while, had the opportunity to observe what the rest of us were doing before introducing its new discovery rules.


Jackson – Solicitors must be ready for electronic working

March 29, 2012

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.


Taking stock of the eDiscovery world

February 15, 2012

This is a good moment to pause a little and look around the eDiscovery / eDisclosure world.  The wide range of topics which make this such an interesting field are all getting an airing at once. The stream of useful and relevant tweets is such that I had to turn it off to get anything done. If it appears to have a largely US flavour, much of it also has relevance in the UK and elsewhere.

I do not feel under any particular pressure to capture it all as it happens, and there are back-room things – the agendas for three forthcoming UK conferences and a White Paper, for example – which have some priority in terms of time allocation than the news stream which, if its elements are of importance at all, will still be so in a week’s time.  My web site also needs some attention to logos and indexes. It is helpful, nevertheless, to list some of the pending stories, if only to head off polite suggestions that I may have missed them. Since the point here is speed, I will ignore my usual rule about hyperlinking to everything referred to.

My involvement in or attendance at some recent events will be covered shortly. Monique Altheim has released videos of the eDiscovery sessions we did at CPDP in Brussels.  Nuix hosted a thought-provoking dinner at LegalTech which stimulated thought about the real meaning of “innovation” in eDiscovery.  It has been said of the cross-border panels hosted at LegalTech by Huron Legal and led by Nigel Murray that “the substantive information conveyed was top shelf” and there is talk of a re-run. Data protection and privacy move back up the agenda anyway thanks to the draft EU data protection regulation. Read the rest of this entry »

Late eDisclosure application tacked on to pre-trial review at a cost of £47,000

September 28, 2011

Court decisions about procedural hearings rarely tell the full story. There may be all sorts of reasons why two good firms of solicitors should find themselves, three months before a 10-day trial, at a pre-trial review onto which had been tacked a specific disclosure application and an application to strike out parts of witness statements. There may also be good reason why one of those parties had clocked up £47,000 in costs – “a very large sum of money for a one hour application” as the judge said mildly.

The case is Omni Laboratories Inc v Eden Energy Ltd, and the hearing came before Mr Justice Akenhead in the Technology and Construction Court. I am obliged to His Honour Judge Simon Brown QC for drawing my attention to it.

The ruling is short and I will leave you to read it, merely pointing to the points which appeal to students of case management. Read the rest of this entry »

The Guardian, the Rolls Building and me

August 22, 2011

“Fancy you being quoted in Communist paper today!”. Thus read an e-mail received as I was boarding the plane for Nashville. The reference is to an article published in Saturday’s Guardian headed Rolls Building court complex can make London ‘global legal centre’, where  a quotation from an article of mine does indeed appear. The quotation is accurate, I gave my permission for anything I had written to be used, and I stand by it. It is, unfortunately, preceded by a sentence which does not represent my view and which could not be inferred from anything I have said. I will come back to that in a moment.

First, though, why should my correspondent be surprised that I am quoted in a “communist paper” (his words, not mine) like the Guardian? It would be fair to say that my views and those of the Guardian’s readership do not overlap very much. I am not altogether sympathetic with the idea that any problem can be solved by raising taxes and throwing a few thousand more civil servants at it; I don’t buy the idea that society is improved by a focus on rights without a concomitant emphasis on responsibilities; I deeply resent the fact that any sensible discussion about differences between people – differences of colour, race or gender – is stifled by immediate accusations of racism, xenophobia or sexism from people too intolerant, and too convinced of their own rightness to allow the subject to have an airing at all; I strongly disapprove of the idea that the state has an over-riding role in protecting us from our own decisions, even before considering the moral and intellectual shortcomings of the politicians and all those low-grade little people who purport to tell us what to do. I once got into serious trouble with a young idealist for using the expression “the Guardian-reading public” as shorthand for a whole class of wet, woolly thinkers whose claimed liberalism is in fact a severe de facto form of oppression.

That does not stop me reading the Guardian from time to time – it is wrong to dismiss views which are different from one’s own without at least trying to understand them, even if “the Guardian-reading public” does not reciprocate the courtesy; besides, the paper itself is more thoughtful than most of its target audience is about these things.

There is one area in which the Guardian has an increasingly important role – the quality of its law reporting. The Times used to be pre-eminent at this, but one rarely finds anything about the law worth reading in The Times now. I am not sure whether this is because they frig around with the layout so much that whole chunks disappear from view or whether the law has been edged out of the paper by its recent emphasis on celebs, fashion, sex and other people’s emotional problems. The Guardian, meanwhile, has gone from strength to strength on legal matters, both in the print and electronic versions and on Twitter. Read the rest of this entry »

A court-led eDiscovery initiative in Singapore

August 16, 2011

I thought I had done with Singapore for a bit, at least until October when I am back there for the InnoXcell eDiscovery conference on 31 October.

A news item on the Asia Legal Business Online website seems worth passing on, however. Headed Singapore: Electronic Discovery Initiatives Launched in Legal Sector, it reports that a steering committee, including representatives from the courts and other interested bodies, including law firms, has been set up to investigate various ways of improving document review, case management and the exchange of discoverable documents.

I will keep in touch with this interesting development and let you know more as things develop.


Rapporteur rounding up the Singapore Electronic Litigation Conference

August 14, 2011

It was a privilege to be asked to be one of the rapporteurs at the end of the International Electronic Litigation Conference in Singapore. Bryan Ghows of UniLegal LLC spoke to one group and I the other, with ten minutes to round up the proceedings. Unusually for me, I actually wrote down in advance what I intended to say, and I give it here as the finale to my series of articles about this excellent conference:

It is proper, at an occasion like this, to address by name or title all the most important people in the room. There are many of you and I have only ten minutes so I will instead simply address “Kind hosts and welcome guests”.

I should say that listening to speeches during lunch is one of my pet hates at these conferences – you have just got a good flow of conversation going and then have to break off and listen to someone speaking. I tried to get out of it by suggesting to Senior Assistant Registrar Yeong Zee Kin that an audience of this calibre does not need to be told what they have just heard, but he said it was proper and it is there in the programme. There is, perhaps fortunately, not much time, so I will pick what seemed to me to be the most lasting points. Read the rest of this entry »

Senior Master Whitaker raises the eDiscovery stakes for unprepared litigants

August 14, 2011

You are busy, I know, and here is another 3,000 words to read. I will repeat here at the top the paragraph with which this article ends, as a taster for what Master Whitaker said in his plenary session speech at the Singapore International Conference on Electronic Litigation.

If Master Whitaker’s opening premise was that businesses are concerned about the costs of discovery, the real concusion from what he said is this: however important the role of judges, whatever is provided as rules, practice directions and court guidance, and however good the technology becomes, the key lies with the clients, both in the way they keep – and destroy – their documents, and in how they select and instruct their lawyers.

Senior Master Whitaker’s talk was headed International Developments in Electronic Discovery. In introducing him, Nicholas Peacock of Herbert Smith referred to Master Whitaker’s other formal title, the Queen’s Remembrancer. That role, he reminded us, was established in 1154; how interesting, he said, that the oldest judicial post in England and Wales should now be at the “cutting edge of bringing technology into the law”.

It is conventional to be polite to your hosts on such occasions, but Master Whitaker clearly meant every word of his opening. Singapore, he said, was a member of a select club of jurisdictions requiring common-law discovery, and punches above its weight in electronic discovery, as appears both from its practice direction and from various decisions. He praised its “forward-looking Chief Justice” (see my post Opening a world class agenda at Singapore Electronic Litigation Conference for a report of the latter’s speech). “Majulah Singapura”, he said, this being Malay for “Onward Singapore”, the nation’s motto. He paid tribute to Senior Assistant Registrar Yeong Zee Kin for his part both in advancing the court processes in Singapore and for his role in organising the conference.

He was, he said, proud of the connection between the Queen’s Bench Division and Singapore which, he said, would continue for as long as he was Senior Master. Read the rest of this entry »

The Singapore Electronic Litigation Conference comes to an end

August 13, 2011

The International Conference on Electronic Litigation came to an end here in Singapore yesterday. I have already given you the core statistics – more than 350 participants from 36 countries. I am staying on until Sunday – as on my recent trip to Hong Kong, the exorbitant airfare for a return on Friday or Saturday far outstrips the cost even of this fairly grand hotel. I don’t mind that, really. I am more likely to get my conference reports written if stuck on my own here than at home.

Lord Justice  Jackson and Vince Neicho of Allen & OveryBrad Mixner of Litigation Edge Pte Ltd and Global EDD Group has been keeping the official conference blog which you will find here, reproducing my posts as well as writing his own, with some photographs in addition (the rest of us were banned from taking photographs, as I have noted before, and the one here of Lord Justice Jackson and Vince Neicho of Allen & Overy is taken with thanks from the official blog).

As you will have gathered from my earlier posts, the conference was not just about electronic discovery but about case management and the whole court-led end of the litigation process. A recurring theme in my posts about the event is that the court really does lead here in relation to the rules, the development of court processes and the wider economic implications for Singapore of becoming the leading jurisdiction in the region. Read the rest of this entry »

Lord Justice Jackson in Singapore: Piloting Civil Justice Reforms

August 11, 2011

The best judicial advocates of proportionate electronic discovery emphasise that, however significant the costs and other implications of discovery, they are but a part of a wider duty to make justice affordable. That duty is distributed – it lies with the judges charged with managing cases and those who devise the rules and procedures; it falls on lawyers and on their clients whose justice is at stake; it is part of the duty of government. Lord Justice Jackson touched on all these in a speech in Singapore which began with Plato and Aristotle and, precisely 45 minutes later, came back to them. The occasion was the International Conference on Electronic Litigation organised jointly by the Singapore Supreme Court and the Singapore Academy of Law.

I do not usually rush out reports of speeches on the day of their delivery, preferring a more leisurely approach with reflective comment. This is a straight transposition from my notes, with little critical or or analytical thought applied.

The evidence in Aristotle’s day, Sir Rupert said, fell within a manageable compass. The instant communications now critical to business were not a boon in all respects. They remain in permanent form to be studied by those with the time and motive, subjected to a full and painstaking analysis by lawyers, and generating “prodigious and sometimes terrifying costs”. Read the rest of this entry »

Jumping Jurisdictions: EDiscovery from California to Singapore

August 10, 2011

I am sorry about all those words from my brief stopover in the UK between California and Singapore – 11,100 of them, 1000 per day and one word for every mile flown to get there and back. What is alarming is that none of those posts formed part of any backlog – this is all current stuff sprung either from the Carmel Valley eDiscovery Retreat or from other things which have developed in what is supposed to be a quiet month.

It is, I know, more helpful to spread them out and it is possible, in fact, to go away and leave articles to publish themselves. I did not do that because many of them cross-link and you can only link to a published article. Equally, I could publish them from Singapore, which is where I am now, but the agenda here is full enough of new material without having to deal with what will by then be old stuff. Exciting times, represented graphically on my blog stats by three spikes reflecting interest in recent topics.

I am in Singapore for the International Conference on Electronic Litigation organised jointly by the Singapore Supreme Court and the Singapore Academy of Law. This was originally to have been a discreet affair hosted in the Supreme Court building, but so many people signed up for it that it has moved to the Marina Mandarin Hotel. Read the rest of this entry »

MoJ Consultation on Civil Justice and Bash-a-Burglar: every man for himself replaces access to justice

July 3, 2011

Lady Hale’s speech on access to justice, the government’s “bash a burglar” scheme, issuing proceedings in Salford, competition from Singapore for dispute resolution as well as banking, eDisclosure and hoods packing heat – all in 2,000 words.

A Ministry of Justice consultation has as its title Solving Disputes in the County Courts: creating a simpler, quicker and more proportionate system and the sub-title Reforming Civil Justice in England and Wales. The consultation closed in the same week as the MoJ announces plans to clarify how much force you may use to kill a burglar and coincides also with a well-received speech by Lady Hale about access to justice.

There is a mixed bag here, human rights rubbing shoulders with the right to self-defence, and in the same bag as the cost of commercial litigation. The common theme seems to be the withdrawal of the state from the inter-action between its businesses and citizens. I am all for a small state, but there is plenty to trim before government abandons the provision of justice. If it was a business, you would say that this was a core function. The MoJ’s core function seems to be the provision of employment for civil servants.

Thanks to my being abroad, I bring you this consultation too late for you to make representations on it, but you may like to see what is going on – and this show will run and run.

The reference documents are as follows:

The MoJ consultation paper CP 6/2011

A post by Charles Christian on the Orange Rag of 27 June headed The judge says technology reform is not happening fast enough. This links to the consultation response by HHJ Simon Brown QC of the Birmingham Mercantile Court and to a letter from him to the Times of 23 March.

My own representation, made on 29 June which, as you will see, focuses on the urgent need for judicial training.

I think that we have to accept that none of the demanded improvements will happen, in the short term at least. Modernisation of the court systems was promised by new Labour in their first year in office and, like so many of the Blair government’s promises, was either dishonestly made at the time to catch the next day’s newspapers or was blocked by Gordon Brown as part of his strategy of spiking Blair’s guns wherever possible. Civil servants are adept at blocking change, hopelessly out of their depth when negotiating procurement contracts, and always willing to sacrifice client-facing staff and services in favour of jobs for senior paper-shufflers. Read the rest of this entry »

Australian Discovery Report stresses Case Management, Consistency and Understanding

June 12, 2011

The Australian Law Reform Commission published its final report Managing Discovery: Discovery of Documents in Federal Courts at the end of May. The net effect of the recommendations is conveniently set out in the final issue of the ALRC’s Discovery e-News:

The ALRC believes that the net effect of its recommendations will be that:

  • judicial officers are encouraged and supported in their role as robust case managers;
  • parties and practitioners will have a clearer understanding of what is expected of them in relation to discovery obligations;
  • the scope of discovery will be defined more clearly and in the context of an understanding of how information is stored and can be accessed; and
  • the clarity of expectations and certainty in obligations will help to maintain proportionality in discovery costs.

The Final Report runs to 384 pages and there is a convenient Summary Report which, at 28 pages, carries the main points of interest.

The key themes on page 10 of the summary will be recognisable to anyone interested in this area:

  • while the reform trajectory in the Court was applauded, there were inconsistencies in practice across the bench;
  • robust judicial case management is critical in facilitating the resolution of disputes in the Court;
  • rigid rules of general application impose unwanted restrictions on judicial discretion;
  • expectations of parties in the Court are not always clear—uncertainties that lead to inconsistency of practice and potentially an increase in costs; and
  • there is an uneasy tension between the time and money that discovery can involve and the right of parties for a reasonable opportunity to present their case. Read the rest of this entry »

UK Government bids for a world-class legal reputation whilst neglecting the basics back home

May 27, 2011

MoJ paper - Plan for growthThe UK Ministry of Justice has launched a paper called Plan for Growth: Promoting the UK’s Legal Services Sector. The opening, at least, is admirably crisp for a civil service document:

It identifies the law as one of Britain’s strengths….

People turn to us because they know they will find world class, highly specialised practitioners and expert judges in the specialist courts. They understand that a decision from a court in the UK carries a global guarantee of impartiality, integrity and enforceability.

…. which is a major contributor to the economy….

These strengths help to explain why the Legal Services sector generated £23.1 billion or 1.8% of the UK’s gross domestic product in 2009 and constituted £3.2 billion in exports – nearly three times more than a decade earlier.

….but which faces competition:

…worldwide competition for legal services is set to intensify over the coming decade. New York, Stockholm, Paris, Geneva, Dubai, Singapore and Hong Kong all stand ready to compete with London and other UK jurisdictions as a hub of legal expertise. While the UK’s excellence and reputation is undoubted, costs and speed may affect where companies choose to resolve their disputes. We intend to do all we can to protect our competitiveness and build on our success.

Steps are to be taken as part of the Government’s Plan for Growth…

the Ministry of Justice is committed to working closely with UK Trade & Investment and the sector to promote the UK as the global centre of legal arbitration and commercial law services.

As part of this we have a fine new Commercial Court building:

Dedicated, high-spec business court under one roof – the Rolls Building brings together the Chancery Division, Technology and Construction Court and Commercial Court under one roof, offering a streamlined service to businesses and maintaining the UK’s reputation as first choice for business law. Read the rest of this entry »

ALRC Update on the Australian Discovery Inquiry

April 20, 2011

Patrick Collins, Senior Legal Officer of the Australian Law Reform Commission, made a presentation at an ediscovery conference in Melbourne last week. I don’t miss many common law ediscovery conferences, but I was not at this one, and I am obliged to Geoffrey Lambert of for pointing me to a summary of Patrick Collins’ presentation.

I noted in a recent post about a Singapore case that those of us concerned with the development of eDisclosure / eDiscovery rules watch closely what is happening in other jurisdictions. Some of us who were involved in the new UK e-Disclosure Practice Direction 31BSenior Master Whitaker, Vince Neicho of Allen & Overy and me – were pleased to be invited to give some input into the consultation phase of the Australian Discovery Report, and will be equally pleased, in due course, to see what recommendations emerge and find favour – it all helps inform our next round of discussions.

I see, incidentally, that our Ministry of Justice has a pretty new web site, and has redirected existing urls to an archived copy. I am sure that makes sense for them, but those of us with links into the site will have to change them all. Since I make a point of linking to the rules and the PD every time I refer to them, that is somewhat tiresome.


Singapore case – Specific Discovery – Sanae Achar v Sci-Gen Ltd

April 20, 2011

A new case from the Singapore High Court involves an appeal against an order for specific discovery of documents. The case is Sanae Achar v Sci-Gen Ltd
[2011] SGHC 87  The appellant lost and was ordered to disclose more or less what had been demanded. She was ordered to pay costs fixed at $1500.

For now, I will leave you to read it without much commentary from me – my focus at the moment is on conference preparations and interesting and important distractions turn up every time I turn back to what I am really supposed to be doing. In reading it you will note that the rules are very close to their equivalents under the CPR of England & Wales. This was no accident; apart from our shared common law tradition, the Singapore courts watch closely what happens in other jurisdictions and are shrewd to adopt, at a steady pace, those procedural measures which seem to work elsewhere. We do the same, which is why judgments like this are of interest. They have sensibly stuck with the word “discovery” and (a point of sentiment to those of us of a certain age), the discovery rules appear in Order 24, as ours used to.

I will draw attention to one point dear to my heart. The judgment ends with a reference to the passage at paragraph 46 of Digicel v Cable & Wireless in which Morgan J adopted Jacob LJ’s point in Nichia v Argos about unturned stones and smoking guns (see paragraphs 44-52 of Nichia). As quoted in the Singapore judgment it reads:

[T]he [discovery] rules do not require that no stone should be left unturned. This may mean that a relevant document, even “a smoking gun” is not found. This attitude is justified by considerations of proportionality

I quote this in almost every talk I give, and see it as the single most important paragraph in any judgment about disclosure.

My thanks to Senior Assistant Registrar Yeong Zee Kin of the Singapore High Court for drawing my attention to this judgment to which, as I say, I will revert in due course.


Big cases coming for big firms – but what about more ordinary litigation?

January 7, 2011

An article in the Lawyer of 3 January is headed Top firms gear up for action as litigation tsunami hits UK . Perhaps the most interesting point made in it concerns the cost of arbitration with the corollary that the court seems still to be the most attractive option, at least for bigger cases.

As its headline makes clear, the article largely concerns a list of very big cases due for hearing in 2011. What about more “ordinary” commercial litigation, the kind with hundreds of thousands or tens of thousands of pounds at stake rather than millions? The article’s premises – that companies have “exhausted more amenable avenues” for resolving disputes, that they must fight because they cannot afford to settle, and that they are “turning their backs on the arbitration process” almost certainly apply further down the scale. The government has promised a fresh drive to encourage mediation, but the target is primarily the smaller matters. Good legal advice appropriate to the dispute is expensive whatever the forum. No-one is knocking the idea that mediation is the right approach for many cases, but the focus should be on improving the court processes, not on driving litigants elsewhere.

Many companies seem to prefer to litigate – or would do if the costs were reduced or at least made more predictable. Lord Justice Jackson drew attention to the importance of certainty, not just as to the outcome but also as to the costs implications. The lawyers who will win business – by beating their rivals but also by encouraging companies to use the courts – are those who are best able to predict costs and keep within their estimates. Read the rest of this entry »

E-Discovery / E-Disclosure Predictions for 2011

December 22, 2010

Metadata, as we all know, is data about data. Perhaps next year we could have predictions about predictions – an article put up at about the beginning of November guessing what the various pundits will include in their list of predictions for 2012, based on their known interests.

My own, for example, are likely to include one about medium-sized firms taking work away from large ones, one about the e-Disclosure Practice Direction, one about the e-Disclosure implications of some pending legislation, one about US-EU privacy conflicts, a side-swipe at judges who fail in their duty to manage the discovery aspects of the cases, and a poke at the government, some civil servants or a government agency.

That is what I gave this year, anyway, as my contribution to Computers & Law’s seasonal collection of predictions. There are links to all the other contributions down the right-hand side. I am not volunteering, but it would be interesting to consolidate them into a Top 10 and review them at the end of next year to see how many of them came good.

I will not attempt an index of all the other sets of predictions made around the world which relate to e-discovery. You should not miss those put up by the Posse List, which thankfully declines to take the whole subject too seriously. I like in particular the prediction that “Browning Marean’s great-great grandchild writes e-book on the implications for legal holds.”

I think I am safe in suggesting that most of us in this field will be even busier next year. I do not aspire to beating the 150,000 miles which I flew in 2010, but who knows? I do expect to do more UK road and rail miles (I mean even more than I did in 2010, not more than 150,000 miles), largely as a result of my first C&L prediction, the one about medium-sized firms.


International discovery, sanctions, ethics and US-UK comparisons at Georgetown

December 8, 2010

I was, I think, the only UK speaker (or, indeed, delegate) at the Georgetown Advanced e-Discovery Institute. If the primary reason for going was to talk about US-EU differences, there was progress made too on the continuing US-UK dialogue about our respective disclosure rules and practice. There is two-way value in seeing how others see us.

A great deal of ground was covered, much of which illuminated the divide between US and UK practice and procedure. I make no apology for the fact that the result is a rather longer article than my usual ones.


The Georgetown Advanced e-Discovery Institute is a polite, learned event, some of whose sessions, one feels, may actually change things, not merely report or comment on them. There is certainly a mood for change, in the sense that no-one involved in US eDiscovery believes that the present approach is sustainable. An outsider sees what appear to be obvious places to start which inevitably centre round the points of differences with one’s own jurisdiction and, indeed, the UK rules came in for much positive comment, as I report below. We in the UK, in turn, need to raise the level at which we discuss the issues, and get more people, particularly judges, to engage in that discussion in the manner so impressively displayed at Georgetown. We might then see a convergence between our rules and the way they work in practice.

Any attempt to translate these thoughts into positive recommendations founders on deep cultural differences plus the knowledge that whilst the UK rules may be fit for their purpose, the practice has a long way to go. Do US lawyers and jurists bang on so much about ethics and keep each other in line with sanctions because they are more ethical than we are or less so? Do parties collect so much data because a) they really think that proportionate justice is to be found that way b) because the fear of being sanctioned has driven all reason out of litigation or c) because the lawyers and technology providers make a lot of money that way? Or is it just that the wheel is going round so fast – technology catching up with volumes and driving expectations – that no-one can stop it now?

And is it presumptuous of us from the UK to accept praise for our rules and for the proportionate spirit behind our rules, when so few UK judges take e-disclosure seriously, when parties in big UK cases can still assert that the disclosure of electronic documents is ipso facto disproportionate, and when we have just had to fight a long hard battle to persuade our Civil Procedure Rule Committee even to accept that the subject is worth raising?

Whilst the English say “electronic discovery is something Americans do, and look what a mess they make of it”, Americans say “England is two years behind the US”. Well, I for one will not disparage the US approach any more severely than they do for themselves, and if a two-year lag saves us from the worst excesses of US discovery, then can we have longer please? The reality is that we can both learn from each other.  The dream combination, perhaps, would be the rules of England & Wales managed by the array of US judges who were present at Georgetown. My view is obviously a partial one.

I will try and pick out the subjects which have most relevance across the jurisdictions, either because there are parallels, or because their absence is itself a matter of note. Read the rest of this entry »

Consultation paper on Discovery in Australian Federal Courts

November 16, 2010

If Lord Justice Jackson’s review of Civil Litigation Costs included the most important summary of disclosure and e-disclosure of 2010, the Australian Law Reform Commission’s Discovery Review will be the key analysis of 2011. The Attorney General’s terms of reference attracted my attention because of the reiterated phrase “as early as possible”, which seems the right priority for all jurisdictions which require discovery of documents.

The ALRC has now published a Consultation Paper. The closing date for submissions is Wednesday 19 January 2011. So far, I have skimmed it rather than read it in my short gap this week between conferences in London and in Washington. My quick skim was sufficient to see that there is much useful thinking in it and I look forward to reading it properly on the plane.

I did, however, pick up two references in it to things which I have written. One of them, read out of its context, has the potential to misrepresent my views in much the same way as a few carefully chosen words from a play review on a theatre billboard can subvert the original sense. I stand by the quotation, but its words were something I had set up in order to knock them down, not my own opinion. Read the rest of this entry »

If judges can rate barristers then barristers should be able to rate judges

November 10, 2010

The Master of the Rolls is considering the idea that judges should rate the quality of the barristers who appear before them, with marks out of ten for various elements in their performance – a kind of Strictly Come Advocating, I suppose. One pictures judges holding up scorecards at the end of each hearing.

Two letters in today’s Times come from judges reacting to this. One, from His Honour Judge David McCarthy, points out that barristers must be fearless in defence of their clients, against the judge if necessary, and suggests that this duty may be compromised if the judge is to report on the advocate’s performance. The other, from His Honour Judge Simon Brown QC, focuses on electronic disclosure and draws attention to Lord Justice Jackson’s recommendations for training for judges as well as for barristers and solicitors, and to existing powers which put lawyers at risk of personal costs orders.

As you might expect from me, I am against this box-ticking approach to quality; quite apart from the fact that judges have quite enough to do already, it reminds me of all those dull little people from Ofsted grading schools and teachers by almost every black and white standard apart from the actual quality of the education received by the pupils – “meeting the target whilst missing the point” as New Labour’s epitaph has it. The market is a pretty good regulator: good barristers get more work and in time rise to become judges; the rest sink to oblivion, perhaps as low as a post at the Crown Prosecution Service – see Judge questions father’s kidnap charge both as justification for my comment and for an example of existing judicial power to make public criticisms of lawyers where, as in this case, the borderline between incompetence and stupidity becomes blurred.

If we must have such an approvals system, then it is only fair that it works the other way round as well, giving barristers the opportunity to rate the judge. Picture a case management conference where the judge has merely ticked a box for standard disclosure, or told the parties to “go away and agree a protocol for disclosure” as I heard one say recently. The judge might get one out of ten for case management because he turned up. The results could be published, and parties could try and avoid courts where the judge ignores his responsibilities in this way.


Berezovsky v Abramovich – refusal of enhanced disclosure order in the Commercial Court

October 31, 2010

A decision about edisclosure made in the Commercial Court by Mrs Justice Gloster DBE in August has recently been published on BAILII. The case is Berezovsky v Abramovich , the pleaded sum at stake exceeds US$3.5 billion, and the allegations made by both parties are serious ones of dishonesty and impropriety. The application was made before standard disclosure had taken place for what is variously called “train of enquiry” or “Peruvian Guano” disclosure, referred to by the judge as “enhanced disclosure”. No formal application was in fact made and no evidence was filed either in support or in answer. It seems unlikely that the judge would have reached a different conclusion if such evidence had been before her, although her rejection of the application was based in part on its lack of particularity.

The judge did, however, helpfully set out the sort of evidence which a court might expect on such applications, namely:

  • i) what documents or categories of documents might be regarded as liable to be searched for, or disclosable, in accordance with standard disclosure procedures;
  • ii) what wider or different categories of document would have to be searched for if an order for enhanced disclosure were to be made;
  • iii) any indication as to the nature of the searches that would have to be carried out, or the extent of the relevant universe of documents, if an enhanced order were made, or the difficulties, if any, that the conduct of such a search would impose on the parties; and
  • iv) any indication of what inquiries, in relation to which issues, such an order for disclosure would require.

The judgment is short and I will leave you to read the arguments for yourself. The key points, to my eye, include the following: Read the rest of this entry »

Lessons from Applied Discovery Proportionality panel in Toronto

October 31, 2010

It sounds a bit flippant to say that I went to Toronto for breakfast. It certainly would not do as an answer to the immigration official asking the purpose of my visit. Readers with long memories may recall two earlier occasions when I nearly made it to Canada and failed. Since then, I have been back to Australia, and spoken in Singapore and Hong Kong, leaving Canada as a big gap in my close-up view of the common law jurisdictions which require discovery of documents in litigation (the other gap is New Zealand, which I hope to remedy soon). I jumped at the chance when Applied Discovery invited me to a breakfast panel session in Toronto called Understanding Proportionality.

Canadian flag and CN TowerThe moderator was Crystal O’Donnell of Applied Discovery, whose white paper entitled Proportionate Litigation was launched at the event. What you need to know from that, by way of introduction, is the new Rule 1.04 s 1.1 which took effect on 1 January and which says this:

In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

If you are tempted to think that this is just a statement of the obvious, you may care to read the 17 pages which Lord Justice Jackson devoted to the subject of proportionality in his Final Report on Litigation Costs starting at page 27. He says this (at paragraph 5.16) à propos his proposed changes to the UK rules:

“The rules should also provide that the fact that costs were necessarily incurred does not make them proportionate. This should be stated explicitly….”.

Once you see a distinction between costs “reasonably incurred” and those which are “proportionate” you see more to proportionality than merely being reasonable.

Crystal O’Donnell had assembled a first-rate panel. Master Calum MacLeod of the Ontario Superior Court of Justice occupies a position as judicial thought-leader equivalent to that of Master Whitaker in the UK. Kelly Friedman of Ogilvy Renault is Chair of Sedona Canada. Susan Nickle is from Wortzman Nickle a specialist ediscovery practice which describes itself as “the go-to law firm in Canada, assisting corporations and their counsel to find practical ways to meet their ediscovery obligations”.

One of the themes running through the session was the need to find the “golden nuggets”. I propose to adopt the same approach to reporting on the session, picking out, without attribution, the passages with the widest general application. Unsurprisingly, they are ones which recur in every relevant jurisdiction. Read the rest of this entry »

A quick eDiscovery trip to Singapore

October 29, 2010

I got back at dawn this morning from the InnoXcell eDiscovery conference in Singapore. I was only there for the two days of the conference and had only just got back from a one day trip to Toronto to attend Applied Discovery’s breakfast seminar on proportionality. My notes about both will follow, together with a catch-up on what else has been happening. The eDiscovery / eDisclosure world is simultaneously expanding and getting smaller.

In discovery as in so many other things, it is often easier to get the hard things right whilst overlooking the easy ones. In the UK Shoesmith case, for example, the documents overlooked by OFSTED lay in a clearly-labelled folder in someone’s My Documents. One of the speakers at Applied Discovery’s session in Toronto last week drew a distinction between things which can be remedied, albeit at some expense, and things which cannot be put right once the critical moment has passed.

I feel much the same about the planning for some of my foreign trips. The hard things involve rounding up panels, preparing slides, organising flights and hotels, and making sure I take all the files and equipment needed to keep working whilst I am away. Inevitably one overlooks something easy – chargers are an obvious example, and I once discovered that a visa was required only when checking in at the airport. Things like this can usually be put right. This is the first time, however, that I have set off without the only thing which is actually irreplaceable – my passport.  What could be easier to remember or to pick up? My son got it to me in time.

Someone once coined a word to describe a place so attractive and accessible that everyone goes there, so making it neither attractive nor accessible. I cannot now remember what the word is, but I have discovered an equivalent concept in preparing to go away – the work needed to pack everything for working on a long flight is so knackering that you fall asleep on the plane and do none of it. I set off with laptop and iPad loaded with sources of articles and draft papers to write, and then slept from Berlin to Burma. There was not much catch-up time on in the 48 hours which separated my arrival in Singapore and my departure. Read the rest of this entry »

Over-estimating both costs and risks in the eDisclosure Practice Direction

September 28, 2010

There is a general sense that the eDisclosure Practice Direction has broad acceptance amongst lawyers – those who have read it before commenting on it, anyway. It is not just another CPR burden, nor is it something to fear – whatever you may hear from scaremongers with an interest in making it seem so.

I do not need to declare my interest in the success of the eDisclosure Practice Direction and its Electronic Documents Questionnaire. I helped draft it and have advocated its principles – of informed co-operation as a pre-requisite for proportionate disclosure – for years. It is good then to report that the initial reactions from lawyers seem to be favourable, even amongst those who accept that there are challenges. Most recognise that the challenges derive from the existence of the electronic documents, not from the measures being taken to control them.

We need to know, in due course, how it works out in practice. Meanwhile, it is worth drawing attention to two wholly predictable reactions which emerged within a few days of publication. The first is properly the subject of debate, though that debate will be more valuable when the proponents on each side have some experience of working with the PD, or have at least run their eyes down its main provisions. The second may appear a matter of nuance, but it is a nuance which matters. The common element is an interest in making the implications of the PD sound more alarming than they are.

I am referring to:

  • The exaggeration by some lawyers of the new burdens allegedly imposed by compliance with the E-disclosure obligations in the rules
  • A similar exaggeration by some technology providers of the same burdens, shading the useful “we can help” into the less useful “you have to involve us to do the job properly”.

Whether the dominant motive is the overriding objective or increasing your profits (and both are perfectly respectable drivers) these exaggerated reactions turn the end user (the lawyers from the perspective of the technology provider and the clients who can choose not to litigate if the system seems inimical to cost-effective litigation) against the whole subject. Let’s debate this by all means, but let’s start by looking at what the obligations actually add up to. Our sources are the documents themselves, the eDisclosure Practice Direction and the Electronic Documents Questionnaire. Read the rest of this entry »

Mrs Justice Gloster on disclosure of documents in the Commercial Court

September 6, 2010

If you wade through all the sex and celebs, fashion, make-up and gossip which comprise the bulk of The Times these days, you can occasionally still find good articles on legal matters, usually written by the excellent Frances Gibb. Their former influence has been diminished by the fact that the Times has disappeared behind a paywall – I express no view on that beyond mourning the former ability to point you to articles of interest.

An article of 2 September was headed Commercial Court goes modern with a woman head judge and new building which, as its title implies, was largely about the appointment of Mrs Justice Gloster as head of the Commercial Court and the imminent move of the Chancery, Commercial and Technology and Construction Courts to the new Rolls Building.

Mrs Justice Gloster has long been influential in case management matters. I once heard her describe  voluminous paper bundles as “counsel’s comfort blanket”. The whole Times article is an interesting one, so it is a pity that you cannot read it. I will, however, set out what it says about disclosure: Read the rest of this entry »

Inquiry blog – Discovery of Documents in Australian Federal Courts

September 6, 2010

An Inquiry into the law, practice and management of the discovery of documents in litigation before Australian Federal Courts was launched by the Attorney-General in May 2010. I wrote about it at the time (see Terms of Reference for Australian Discovery review), and see it as one of the most important pending developments in discovery (and therefore necessarily in electronic discovery / e-disclosure) in hand anywhere in the world at the moment. The other, of course, is the UK’s e-disclosure practice direction and electronic documents questionnaire which will take effect on 1 October 2010.

Masters Conference for legal professionalsThese two initiatives have significance, even for the US as it struggles with the implications, in time and in costs, of handling electronic documents proportionately. I am moderating a panel at the Masters Conference in Washington on 4 to 6 October which will consider these UK and Australian developments and will suggest that even the US has something to learn from them.

The duty of consulting and reporting on discovery falls on the Australian Law Reform Commission (ALRC). The ALRC has set up a blog called Discovery of Documents in Federal Courts to report on its progress, to raise subjects for discussion and to capture comments. The Attorney-General’s Terms of Reference can be found there; as I said in my original post, the reiterated use of the words “as early as possible” points the enquiry in what is obviously the right starting place. Read the rest of this entry »

Discovering new methods of persuasion

August 9, 2010

As you know, part of my role is to persuade, and I am always looking out for new ways of getting people to consider how best to handle electronic documents. It is the mere consideration which matters – no-one is saying (well, I am not, anyway) that every case, or even most cases, require you to jump about preserving and collecting everything in sight, but anyone who engages in litigation ought to have some idea of the costs and other factors which apply when litigation threatens. Knowing the rules and being familiar with the occasional judgment is not a bad start, and is the least one might expect from a lawyer who purports to practice civil litigation.

I write a bit, and speak at conferences, do webinars and the occasional podcast or video – any method, really to promote awareness of the subject. What is the proper response, however, when you come across an audience which has self-selected as being interested in electronic disclosure but which has not heard of the Practice Direction to Part 31 CPR (it has been in the CPR for five years), or cases like Digicel v Cable & Wireless, Earles v Barclays Bank or Goodale v Ministry of Justice? Desperate remedies are needed, and I think I found one at the weekend:

New method of persuasion Read the rest of this entry »


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