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.


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 »

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 »

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.


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 »

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 »

Australian ediscovery round-up

June 28, 2010

My conclusion after my recent visit to Sydney was that every jurisdiction which engages in ediscovery thinks that it is behind the others. This is certainly not true of Australia, and  Master Whitaker and I were not merely being polite when we said that we had come to find out what is happening there for our own benefit, as well as bringing news of developments in the UK.

There is enough going on down there at the moment to warrant a quick summary. My own accounts of our visit to Sydney are here and here,  and I wrote before I went of the Attorney General’s Terms of Reference for a Discovery review.

Since then, Geoffrey Lambert of has tipped me off about a further development, the Civil Dispute Resolution Bill 2010 (Bill) which, if enacted, will require a “Genuine Steps” process by which parties must show formally that they have tried to settle a dispute, with costs implications if they do not do so. I am slightly chary of developments like this – the experience in England & Wales of court-driven settlement is that the mechanics of managing the dispute take second place to attempts to impose a rapprochement which is itself expensive and not necessarily what the parties want.  There is a distinction (for which we must thank Professor Dame Hazel Genn QC) between “a just settlement” and “just a settlement”, and there is a difference too between mediation to resolve a dispute and co-operation to conduct it efficiently.  If judges spent less time on the former and more time imposing the latter, we might see the costs of litigation come down whilst allowing the parties to have their day in court. It will be interesting to see if Australia can take the benefits of alternative dispute resolution without losing the drive towards more efficient procedures for managing contention. Read the rest of this entry »

Lunch-time talk in Sydney with Nuix and KPMG

June 13, 2010

Knowing that Master Whitaker and I were going to be in Sydney for the Chilli IQ eDiscovery conference, Eddie Sheehy of Nuix invited us to speak at a lunch organised by Nuix and KPMG. The venue was a room on the 15th floor of KPMG’s office overlooking the quay at Barangaroo and the mouth of Darling Harbour, and the audience comprised senior people from large financial and other corporations.

I like this kind of event, because it gets to audiences who are capable of long-term decision-making. Once litigation has commenced or a regulatory investigation is under way, the range of options becomes limited – you are where you are in terms of preparation, and there is often no time to choose the lawyers, decide on the technology or take a long view on the strategy. It is like being a general in the field the night before the battle; your options for deployment and tactics are constrained by what has been done or left undone in the past. The level of decision-maker round that lunch table is in a position to see, for example, the aggregated costs of last year’s litigation, which gives some incentive to plan for next year’s – and to do something about it. Read the rest of this entry »

Far and wide eDiscovery at the Chilli IQ conference in Sydney

June 13, 2010

Sometimes an unconscious theme develops during conferences. Appropriately, perhaps, given the “IQ” element in the organiser’s name, the point which recurred in Sydney was the use of human intelligence in parallel with the processing power and clever technology to get as early as possible to the things which matter. That phrase “as early as possible” came up a lot, not least because (as I noted when I commented on it – see Terms of Reference for Australian Discovery review),  the Australian Attorney General’s Terms of Reference for the pending Discovery Review uses those words three times in their few lines.

Beth Patterson of Allens Arthur Robinson observed, for example, that one might be able to count whole directories in or out by having someone with the appropriate skills and a bit of brain just look in them; if they are patently irrelevant, why include them in the future stages? Michelle Mahoney of Mallesons said that dependence on raw processing power alone meant taking the thinking out of discovery; computers are very good at many things, but they cannot think. Eddie Sheehy of Nuix, unsurprisingly as strong an advocate of intelligent computing power as you will find, recommended giving a couple of the team’s best brains a day or two towards the end of the exercise to try and pick holes in the result by going in any direction they thought fit, trying to find documents or categories which had been wrongly included or excluded. For the third conference running, Equivio (who were not involved at any of them) was praised for the way its products used the best of technology and intelligent human input.  And I used my stock phrase “the best technology lies between your ears”.

Chris Dale and Master WihitakerI quite like opening the batting at these conferences. The audience is awake, no-one can have stolen your thunder by covering your chosen ground, and a keynote speaker has licence to roam more widely than one with a defined topic.  I merged my session with that of Senior Master Whitaker – I gave a short introductory speech, and used the rest of the double session for an interview-style  discussion with Steven Whitaker about UK developments.  My topics in opening included the international community of interest in ediscovery; the relative importance of rules and processes on the one hand, and discretion, proportionality and the clients’ actual objectives on the other; and the changing relationship between clients, their lawyers and the technology suppliers, with the possibility that the lawyers will get marginalised in that relationship.  Steven Whitaker took us through the key points of the Jackson Report, the range of disclosure options in the draft Rule 31.5A, and the proposed Practice Direction and Questionnaire. We took the cases between us, Steven Whitaker covering the ones which turned on the law, and I taking those in which stupidity, ignorance and incompetence were the main factors (there is something about being in Australia which encourages plain speaking). Read the rest of this entry »

Chris-crossing the globe for e-discovery

June 10, 2010

Sorry for the silence. It has been a bit busy here – not just “here” which is Sydney, but in the short gap in England between leaving Las Vegas and setting off for here. It is a brisk sunny morning (Thursday, I think) here. It is the middle of the night in Liverpool, where I spoke last Thursday. It is late afternoon in Las Vegas where I was a few days ago for CEIC. My inner clock has lost track. It is quite a liberation in a way – as long as you make sure you get to the airports before the planes leave, haul yourself onto a podium at about the same time as the audience sits down, and make it to the meetings and dinners, the division of time thereafter can be wholly arbitrary. Working when you are awake and sleeping when you are tired is not on if you land with a schedule of back-to-back meetings, but it works for me. Read the rest of this entry »

Terms of Reference for Australian Discovery review

June 2, 2010

I have already reported that the Australian Attorney General has commissioned a review of  discovery laws. We now have sight of the formal Terms of Reference which embed the purpose of the review firmly in the title – “to improve access to justice”.

Their brevity may mislead one into thinking that the Terms of Reference are narrow in ambit. As with Lord Justice Jackson’s terms of reference, the opposite is true – this review is as broad in scope as it could be. Note the recurrence, even in this short document of the phrase “as early as possible”:

…requiring parties to identify and disclose critical documents as early as possible

…ensure key documents relevant to the real issues in dispute are identified as early as possible

…obligations on practitioners and parties to identify relevant material as early as possible

You cannot miss the point there, can you? Read the rest of this entry »

A week of change in e-Disclosure as well as in politics

May 16, 2010

It is not often that you look back over a week or so and know that you will always remember it. Eight days ago, we had the same government as we had had for 13 years; now, not only the government but the face of politics has changed for ever. After years with almost no e-disclosure cases at all, two were  reported last week which we will refer to for some time. I have done two sessions with lawyers from which I have emerged confident that the messages are striking home.  At a more mundane level, all next week’s conference sessions now have plans or scripts and the travel arrangements for the next round of conferences are falling into place, or were before ash and strikes threatened. Last Thursday seems a world away. Read the rest of this entry »

Imminent reform in prospect for Australian discovery process

May 14, 2010

Reform of the discovery process in Australia is said to be “imminent”, according to an article in the New Lawyer. The article says that the Attorney General has asked the Australian Law Reform Commission to explore options to promote the early and proportionate exchange of information and evidence in court proceedings with an emphasis on the role of the courts in managing discovery by using their case management powers. My thanks to Simon Price of Recommind for drawing my attention to the article.

The article refers to the experience of international jurisdictions. Those of us concerned with improving the court process are enthusiastic about the exchange of ideas between jurisdictions, particularly where the system of law is similar to ours. Lord Justice Jackson visited Australia as part of his fact-finding tour before writing his Preliminary Report, and we studied the Australian Electronic Technology Practice Note CM 6 when drafting our own new practice direction and Questionnaire. Read the rest of this entry »

New web site for Asia-Pacific

March 8, 2010

I can see why it has taken some time to assemble their new website following the acquisition of CCH Workflow Solutions in November 2009. The integrated business now covers a very broad range of activities across a wide geographical area, and that alone must have taken some time to assemble in a website with a new corporate identity.

What they have done in addition, however, is taken a great deal of trouble to explain to site visitors what the purpose is of the activities undertaken by the integrated business. Each section – e.forensics, e-discovery, e.courts, bureau services etc – begins with a section called “what is …” where so many sites appear to take it for granted that their visitors understand these things. In basic marketing terms, the number of law firms and corporate clients who do not understand is greater than the number who do. All are affected by the same demands and pressures, not least those of the court rules. A provider who bothers to explain the purposes of the various functions is likely to be attractive to new clients as well as existing ones. Read the rest of this entry »

Nuix joins the e-Disclosure Information Project

March 5, 2010

I am delighted to welcome eDiscovery and electronic investigation software company Nuix as the latest sponsor of the e-Disclosure Information Project.

The connection began at the Ark Group eDiscovery conference in Sydney last year when I found myself sitting next to Nuix CEO Eddie Sheehy and had a drink with him and Browning Marean of DLA Piper US after the conference.  We met up again at LegalTech in New York a few weeks ago, when I went to see Nuix 3 with HHJ Simon Grenfell, Designated Civil Judge, Leeds and North Yorkshire. Nuix 3 is offered by London-based providers 7Safe (itself a sponsor of the e-Disclosure Information Project) and Millnet.

Next week, on 9 and 10 March, Eddie Sheehy is Chairman of the Ark Group Sydney conference and HHJ Simon Brown QC, Designated Civil Judge at the Birmingham Civil Justice Centre is on a judicial panel with The Honourable Justice Ian V Gzell, who was a speaker at the LexisNexis eDiscovery conference in Singapore which Browning Marean and I co-chaired last October and at which Senior Master Whitaker was also a speaker Read the rest of this entry »

E-Discovery and Judicial Involvement in Australia

March 1, 2010

Project Counsel is the sister site to The Posse List, both run by the ubiquitous Gregory Bufithis. Project Counsel’s web site carried an article on 25th February with the title In Australia, e-Discovery and enhanced judicial involvement come of age . That is a high ratio of interesting key words to me, with “Australia”, “e-Discovery” and “enhanced judicial involvement” all being hot topics.

The article summarises a look taken by Australian law firm McCulloch Robertson at the development of active court involvement in the management of cases generally and electronic discovery in particular. It includes many elements in common with those which we either have or are promoting in England & Wales following the Jackson Report on Litigation Costs. The general aim is the reduction of the cost of litigation and minimising unnecessary delays. It is some consolation to me, following the recent side-lining of our draft e-Disclosure Practice Direction and ESI Questionnaire, that the introduction of the equivalent in the Federal Court of Australia (originally Practice Note 17, now CM 6) was as long drawn-out and painful a process as we are finding it here. Australia got there in the end, a little over a year ago. Our draft Practice Direction took account of the arguments and difficulties experienced in Australia amongst other places.

Doubtless we will get there in the end, and catch up with not just Australia but Singapore and Canada, both of which introduced also new e-Discovery rules in 2009. We used to lead the world in such things, but that was true also of cricket and economic prosperity. Read the rest of this entry »

You cannot really complain at a full InBox and lots of tweets

February 26, 2010

A day in London leaves me with a pile of e-mails and a heap of tweets – all signs of a lively market, and to be welcomed despite the time it will take to catch up. Add a crusading podcast, a decent lunch, and an interesting meeting and it all adds up to a useful day. But, as an aside, why do some businesses go out of their way to alienate their customers?

I blame Twitter myself. I used to be able to go out for a day and keep up, more or less, with the e-mails as they came in, so that I had only to file them on getting home. These days, that stream is supplemented by a near-constant flow of tweets, a high proportion of which carry links to interesting articles. Again, I can usually keep up with that flow as it comes by. The problem today was that my three meetings had gaps between them only just long enough to walk from one to the other. An alarmingly high number of urban road accidents are apparently caused by people dealing with their e-mails and tweets whilst walking and, interesting and important as it all was, I was not prepared to be run over in the cause. The journey home from London to Oxford appeared to take about five minutes, so I presumably slept through it and was very lucky not to end up in Hereford.

The result, now I am home – on my left a screen full of interesting tweets; on my right an Inbox full of e-mails. I am not complaining, you understand; there are plenty of businesses at the moment which warrant no tweet-flow and generate no e-mail traffic. Besides, today’s stream has included, in no particular order, the following: positive reactions to suggestions which I have floated about e-Disclosure road-shows; progress on a proposed supplement in The Times on legal efficiency; a message with “massive congratulations on the ease and value” of my blog; a link to a white paper which looked familiar before I realised that I co-wrote it with 7Safe; interest in sponsoring the Project from a big player in search; a further step forward on the Women in eDiscovery initiative which we are running; a product release by one of my sponsors; an article from Australia headed “e-Discovery and Enhanced Judicial Involvement Come of Age” which is extremely timely; a US article which uses a post of mine as the starting point for reflections on EU privacy; and some re-tweets of an article I published before I set off this morning. That is a lot to follow up, but it is all good stuff. It will have to wait until tomorrow. Read the rest of this entry »

Posse List interview with Asia Pacific: the spike in e-discovery work in Asia

January 28, 2010

I was speaking in Singapore when news broke of’s acquisition of CCH Workflow Solutions. It added to my general impression (which I was bold enough to turn into a prediction) that the Asia-Pacific region was the place to watch for 2010.

The months following the merger of two businesses are not the best time to keep in touch with people, and although I have exchanged a few messages with Allison Stanfield and Scott Gillard, both of whom I knew pre-acquisition, I have not really kept up with how things have worked out since the acquisition completed towards the end of November, beyond hearing that the multiple locations which the combined business now has, with offices and service centres throughout Australia and Asia, are very busy (I did pick up someone’s Google search for < Allison Stanfield Antarctica > but when I checked, that was about something which had sponsored, not a new office). Read the rest of this entry »

Virtual LegalTech round-up

November 24, 2009

The general reaction to ALM’s Virtual LegalTech by its participants and delegates seems generally to be positive. If, as Charles Christian said on Twitter afterwards, it had a 1990s feel to it, well, that can doubtless be improved upon in future years. Christian is right also to say that opportunities were missed to make use of multimedia in the presentations, particularly as to the technology itself. Some of the ideas which I have scouted on this site for video presentations of technology solutions might easily have been slotted into the framework. This is all capable of remedy in future presentations.  ALM bit off quite enough for a first go at this. Read the rest of this entry »

Federal Court of Australia re-issues PN 17

September 29, 2009

Your heart sinks when you see a headline like that. PN 17 re-issued already? It only came into force in February. What can have turned up which warranted re-issuing it?

It transpires that this is the result of a re-numbering exercise consequent on a decision that only two forms of practice documents will be issued by the Federal Court of Australia, Practice Notes issued by the Chief Justice and local Administrative Notices issued by each District Registrar.

PN 17 is now PN CM 6 and is now entitled Electronic Technology in Litigation. My thanks to Seamus Byrne for providing the links and to Michelle Mahoney of Mallesons who, as always, was quickest to the draw when it comes to ferreting out useful pointers. Read the rest of this entry »

Australia at the centre of the discovery world

June 28, 2009

The default map of the world shows Britain in the middle and near the top, with Alaska at top left and New Zealand at bottom right. Perhaps that is because Europe invented the Greenwich Meridian; maybe it is a legacy of Empire or a conspiracy of cartographers (the phrase is Tom Stoppard’s);  possibly the maps in Australia are centred on Canberra, with Iceland and Cape Horn as their left and right extremes. By any measure, anywhere else is a long way from Australia. Its influence in the world of electronic discovery is disproportionately large. Read the rest of this entry »

Fast Track Directions in Australian Federal Court

April 28, 2009

The  Australian Federal Court has promulgated new Fast Track Directions which aim to get a case finished within 5 to 8 months, and to reduce costs by limiting discovery and avoiding lengthy interlocutory disputes.

I have noted before that the Australian courts have a more flexible approach to the eligibility of a case for special tracking arrangements – a case is fit for the fast track (subject to some exceptions) because that is what the parties agree or what the court orders, whereas the UK allocation depends on fixed limits.

Pleadings are replaced with Fast Track Statements, Responses and Cross-Claims. There is an express general duty to co-operate and to act in good faith,expressed thus:

5.1 The Court expects the parties and their representatives to cooperate with, and assist, the Court in ensuring the proceeding is conducted in accordance with the Fast Track Directions so that the real issues in dispute are identified as early as possible and are dealt with in the most efficient way possible.

There is also an extension of that duty to co-operate in respect of interlocutory disputes which is put like this:

5.2    Before making any application relating to an interlocutory dispute (including disputes in relation to discovery), the parties must meet and confer and attempt to resolve the dispute in good faith.  If the parties are unable to resolve the dispute, any application about the issue must contain a certificate by the moving party’s lawyer that the ‘meet and confer’ requirement was completed, though unsuccessful.  Failure to so certify will result in the application being immediately refused.

Discovery itself is limited in a manner which reflects the rules, if not necessarily the practice, under the UK CPR. The requirement is

7.1    Except where expanded or limited by the presiding judge, discovery if ordered in proceedings to which the Fast Track Directions apply will be confined to documents in the following categories:

(a)  documents on which a party intends to rely; and

(b)  documents that have significant probative value adverse to a party’s case.

… and there is a duty to make a ‘good-faith proportionate search’ and to explain what steps have been taken.

The court’s duty of active management is both expressly provided for and clearly implicit in the scheduling arrangements. The new Practice Note  fits briskly on to ten pages. It will be interesting to hear how it goes and what the practitioners and judges feel about it after a year of operations.

My thanks to Geoffrey Lambert of KordaMentha for drawing my attention to the Fast Track Directions.


Not going to Canada for the second time this month

April 16, 2009

As you may recall, I was not able to go to a meeting in Toronto at the beginning of April, when Senior Master Whitaker and I had hoped to see Justice Campbell and others to talk about common ground between Canada and the UK on the case management of civil litigation. I am also not going to Montreal next week for the LegalIT 3.0 conference  on 20 and 21 April for the prosaic reason that I have only just found out about it.

Jo Sherman of eDiscovery Tools and the Australian Future Courts Programme is coming here at the week-end so that we can talk about the new Australian Federal Practice Note 17 on the use of technology in the management of discovery and the conduct of litigation which she masterminded and which is relevant to our planned Technology Questionnaire and e-Disclosure Practice Direction. She mentioned that she was en route to a panel presentation in Montreal – the first I had heard of it. Read the rest of this entry »

Welcome to FTI Technology as a sponsor of the e-Disclosure Information Project

April 9, 2009

It is very good to welcome FTI Technology as a sponsor of the e-Disclosure Information Project. FTI Technology is a segment of FTI Consulting, Inc., a global business advisory firm, and brings immense resources to bear on the acquisitions and the software development needed to produce a world-class platform for disclosure / discovery.

As usual, I see no point in copy-typing or edit-pasting the perfectly good prose of a well-written press release, and refer you to FTI’s announcement of 27 January 2009 which sets out succinctly what FTI have done with their two flagship electronic discovery acquisitions Attenex and Ringtail Legal. Put shortly, they have integrated the advanced analysis, clustering, rapid review and graphical visualisation strengths of Attenex and the review, redaction and production capabilities of Ringtail.

In layman’s terms (since, as I say, you can read the formal descriptions for yourself) Attenex ploughs through large (very large if that is what you have) data collections, and helps identify material you either want to discard or to review, serving it up in batches. The clustering and visualisation tools allow quick overviews in a form which allows the reviewer to drill down to document level if necessary and to make decisions which both carry through into the detailed review stage and inform decisions about subsequent batches of documents. Ringtail Legal allows you move straight on to the detailed review without having to move the data between applications. Read the rest of this entry »

KordaMentha picks EnCase from Guidance Software for Australian eDiscovery

April 9, 2009

Like sport and so much else, the idea of proving a legal case by discovery of documents is an old English concept which was adopted wherever the English had a hand in establishing a system of law. America kept it when it dumped our tea, our taxes and our King. Australia adopted it with the same enthusiasm as it adopted cricket. A couple of weeks ago, Hong Kong was host to both the Rugby Sevens and our Senior Master Whitaker talking about UK disclosure developments. Discovery is central to Canadian litigation, and Master Whitaker is due to speak about it in Singapore later in the year.

Three things unite all these countries apart from their common law heritage. The problems raised by electronic disclosure are the same everywhere; those of us involved in developing rules and best practices around the world all speak to each other; and there is a handful of suppliers whose applications are used wherever electronic data must be collected and handled for litigation or for regulatory investigation. The resulting cross-fertilisation has obvious benefits – what works in one place will probably work in another, and if an approach tried in one country is seen to have failed, then it is as well to know about it before another jurisdiction goes down the same track. The things I talk about in Birmingham or Bristol are informed by what I Iearn in Sydney or New York, and it would perhaps surprise UK judges and lawyers to know how much interest there is in those places in what happens in the UK. Read the rest of this entry »

Discovery Practice Note issued in Australia

January 30, 2009

The Chief Justice of the Federal Court of Australia yesterday gave effect to the long-awaited Practice Note No 17 – The use of technology in the management of discovery and the conduct of litigation.

Those of us involved in drafting the proposed new Technology Questionnaire and draft Practice Direction in the UK have been keen to keep up with parallel initiatives in the Common Law jurisdictions. and particularly Australia and Canada.

The timing of its final release is good and bad from my point of view – good in that I am due to speak on a panel at LegalTech in New York next week about international initiatives in electronic discovery, and bad in that I have enough to do to be ready for tomorrow’s flight without exciting new developments to read up.

Fortunately, one of my co-speakers on that panel is Jo Sherman who was heavily involved in the drafting of the Practice Note, so I can leave it to her to cover it. I will read it on the plane and cover it in more detail shortly.

My thanks to Geoffrey Lambert of KordaMentha in Melbourne and to Seamus Byrne who each sent me a link to the Practice Note within hours of its promulgation.


Identify early and co-operate in 2009

December 24, 2008

As I sign off for Christmas, I would like to thank all those who have sponsored, supported or in any other way encouraged the e-Disclosure Information Project in 2008 and wish you all a Merry Christmas and a Happy New Year.

It is only a month since I did a round up to cover the Project’s first birthday. Since then, we have had yet a third new e-disclosure case in the UK, Abela v Hammonds, and LDSI has joined the sponsors.

There is already a great deal planned for next year: the conference diary is filling up; my Law Society seminar tour will take up again; there should be a good UK showing at LegalTech in New York; there are plans afoot for co-operation with US, Australian and Canadian judges, rule makers and thought leaders with, I hope; a visit to each of these countries in March/April; there is a Technology Questionnaire to launch and a Practice Direction to draft; I hope to repeat in other UK cities the talk we gave in Birmingham at which we showed judges, barristers and solicitors some of the applications which are used in electronic disclosure; Vince Neicho of Allen & Overy and I are plotting an e-disclosure conference on our own model; with the Project format now established, I am looking forward to yet more interaction with its sponsors; as well as going to see and speak to people on their own patches in the UK and abroad, I hope to entice more visitors to come to Oxford and kick ideas around on Port Meadow, as I have done several times this year. Read the rest of this entry »

Mancia: interest in US being interested in them

December 23, 2008

A growing theme on this site which will get more important in 2009 is that electronic discovery in the US is getting to be of more interest to us in the UK. This is not because the English courts are getting more involved in e-disclosure (they are, but that is not why we are paying more attention to the US). The new interest derives from US Opinions which have wider and more universal messages than hitherto.

Americans can pound each other to bits over “spoliation” and “defensibility” and we could not be more bored. Nor do we really want to be told how to do it at a judicial level (but we love the technology, thanks). That is in part because there is a growing appreciation that we have some pretty good rules of our own if only anyone would use them, as judges are beginning to – see Digicel, and Abela ( the links are to articles of mine about these English cases). Read the rest of this entry »

Australian judgment served via Facebook

December 17, 2008

Lawyers in Australia have served a default judgment on borrowers by sending it via Facebook. The Supreme Court of Australian Capital Territory gave leave for service to be effected in this way because the borrowers had left their last-known address. There was enough information on the Facebook accounts to satisfy the court that the addressees were the right people. Read the rest of this entry »

Reviewing the Commercial Court Recommendations

December 9, 2008

The risk that contentious work might shift to arbitration or to other jurisdictions such as Germany is reason enough for us to fight to keep it here. The Commercial Court Long Trials Recommendations may have had too wide a focus. Attention to the costs of disclosure, with help from a new generation of Early Case Assessment tools and a pooling of ideas with Australia and Canada may be the next step

On 2 December, the City of London Law Society considered the impact of the Commercial Court Long Trials Recommendations at an open meeting held at Freshfields. I usually go to any such events but had not picked up that it was happening – not the only thing I was in the dark about on that day, since someone drilled through a mains cable at breakfast-time and I was without power till far into the night. I would at least have kept warm if I had gone to the meeting. I am grateful to Mark Surguy of Pinsent Masons in Birmingham for a summary of what was said. Read the rest of this entry »

Ignorance of mainstream technology may cost you

December 9, 2008

Internet telephony, like litigation technology, is now accessible and affordable. Ignoring VOIP merely passes up the chance to cut your telephone bill. Ignoring litigation technology may cost you rather more. The problems, and the solutions, are the same everywhere

A male who bought his first PC shortly after they first came on the market and who has been a software developer might be regarded with some suspicion when he tries to induce others to use technology. You could look at it the other way, of course, and reckon that if someone imbued with office computer technology since its infancy still finds some of it near-magical in its power, then it might be worth a look.

This was brought to mind by two phone calls I received in close succession across midnight on Saturday. At that time of night it is the middle of the day in West Coast America and early morning in Victoria, Australia. My first call was from Browning Marean of DLA Piper US LLP in San Diego and the second was from Geoffrey Lambert of KordaMentha in Melbourne. Both were by VOIP (Voice Over Internet Protocol) and the total of two hours’ crystal-clear conversation with opposite corners of the world cost none of us anything. Read the rest of this entry »

Speaking and listening in Australia

October 30, 2008

Sydney feels familiar from the moment you step off the plane. It is not just its culture, language and architecture which makes you feel at home – its law, its information management issues, the remedies available to judges and the suppliers are the same or similar

Several decades ago, I lived and taught in Kenya on what was then not called a “gap year”. The gap was not optional in those days for those intending to go to Oxford or Cambridge.  I had until September to occupy, and arranged to spend the interval at a remote up-country school near Nyeri.

There was a boy amongst us who could see English parallels everywhere – you would be standing on a mud road looking up a valley of tea plantations at the mist hanging over the snowy peak of Mount Kenya and he would say “Just like the Lake District”. I have half a recollection that he compared a part of Nairobi to his native Croydon. This obsession with the similarities became slightly annoying for one whose pleasure derived from the geographical and cultural differences. In fact, although Kenya had become independent only ten years previously, pretty well every outward trace of colonial rule had been extirpated. The first signs of the new colonialism of the multinational existed in the form of a new Hilton Hotel.

I thought of this as I came in to Sydney over Botany Bay, whose sewage farm, oil refinery and container terminal jarred somewhat against my mental picture of Captain Cook picking daffodils beside gleaming sands. The first sign you see, over the starboard wing before your wheels touch the ground, are the yellow arches of McDonalds. One’s expectations of finding anything very different from Oxford or Washington diminish accordingly. Read the rest of this entry »

e-Disclosure conference list updated

September 5, 2008

The next round of conferences begins on 10 and 11 September with Ark Group’s Adopting practical guidelines for E-Disclosure management at which I am again speaking with HHJ Simon Brown QC. Our subject is Preparing Judges to make effective e-Disclosure decisions.

I have five more to do in London in 2008, plus one in Sydney and six regional talks for the Law Society. Next year’s bookings are beginning to come in.

By then, the trial period for the Commercial Court Recommendations will have run its course, the new draft directions order will have been in use for six months or so in the Mercantile Courts and we should be close to having a Technology Questionnaire as a required stage in the case management process. If you do not know what any of these things are, or what effect they will have, it is time to start finding out. Between them, they signal a more rigorous approach to case management, with particular emphasis on electronic disclosure. It will no longer be possible to treat Part 31 CPR and its Practice Direction as optional. Read the rest of this entry »

The Aussie e-Discovery Dream Team

August 15, 2008

Renée Lee, International Marketing Director at Guidance Software, is leaving Guidance and will shortly be joining eDiscovery Tools. The e-Disclosure Information Project’s loss on one side is balanced by a gain on the other

I had been two days in the remote Cornish cottage which we borrowed last week before I strayed into a patch of garden where my BlackBerry sprang to life (yes, I know it has a switch somewhere to turn it off). The first batch of messages to come through included a short one from Renée Lee at Guidance Software briefly asking recipients to note that this was her final day at Guidance Software. Since Renee and I had been talking a couple of days earlier, planning my imminent visit to Guidance in Pasadena, this came as something of a shock.

As a communication from someone highly skilled in communication, the message was somewhat short on information. It took another 24 hours for me to establish that Renée is going to join Jo Sherman and Seamus Byrne at eDiscovery Tools. Read the rest of this entry »

Waltzing off to Australia

July 30, 2008

I have for some time been mentioning Australia as the jurisdiction to watch for developments in court rules and procedures relating to case management and, in particular, the handling of electronic documents.

They warrant a closer look on my part, not least because I have been invited to speak at Ark Group’s Corporate eDiscovery Conference Preparing your organisation for eDiscovery in Sydney on 13-15 October 2008. My main subject will be Responsibility for eDiscovery, which allows me to bring together sources as diverse as the UK Commercial Court Recommendations, the US Qualcomm sanctions case, the recent US cases (O’Keefe and Victor Stanley) on the use of search technology, and the express requirement in Australia to the effect that lawyers who appear before the courts ought to know something about relevant technology or get suitable help when they do not. Read the rest of this entry »

Catching up will have to wait

July 15, 2008

I had hoped by now to have written up the talks which HHJ Simon Brown QC and I gave to two groups of judges in the last two weeks, but time is against me and a short summary will have to do for now.

The audiences were first the Designated Civil Judges and then the Specialist Judges. The e-Disclosure Information Project, of which this site is the most obvious tangible output, began as an exercise in helping judges at the junction of two technical subjects – the CPR and technology. The first of these has been unchanged since 2005, but remains shrouded in a mystery which it does not deserve. The second changes all the time. My role is to try and unshroud the rules and to help introduce the technology to those who need it or who need to know about it if proportionate orders are to be made about disclosure. Read the rest of this entry »

Rocket Dockets in Australian case management

June 9, 2008

We do not need an express “rocket docket” jurisdiction for everyone to agree that some or all of the case stages may be speeded up or dispensed with. It is, however, worth seeing what is happening in Australia.

Seamus Byrne of eDiscovery Tools in Australia (and now in London as well) responds quickly to my reference to “rocket docket” cases in the US (see Whose discovery rules would you rather break?) by pointing out that a rocket docket pilot is in hand in the Federal Court of Australia.

More formally called the Fast Track List , the pilot takes as its guiding premise that Cases cannot be made less complex, but judges can control the conduct of a case to a much greater extent thereby ensuring efficiency. Discovery has become most burdensome [and in] many cases it the single largest cost incurred in the preparation of the case. Many practitioners in the UK will applaud the conclusion that the practice … of requiring parties’ evidence to be tendered in the form of witness statements has significantly added to the costs. Read the rest of this entry »

Summation of e-disclosure responsibilities

May 31, 2008

Wolters Kluwer, owners of CT Summation, invited me to speak on 20 May as part of their series of thought-leadership talks. The subject was e-Disclosure costs and responsibilities: a primer for in-house and external counsel. I had adopted the theme of responsibility as my central prediction for the year (see Predicting litigation responsibility for 2008), and I spoke briefly about it at ILTA Insight 2008. I was glad of the opportunity to expand on the theme. Read the rest of this entry »

Guidance on benefits of e-Disclosure Project

May 25, 2008

If it was slightly embarrassing to find myself the principal subject-matter of a speaker session at the IQPC Information Retention and E-Disclosure Management Conference last week, it is even more so to have the task of writing about it afterwards. But in giving over his speaker slot to a description of my e-Disclosure Information Project, Patrick Burke of Guidance Software neatly encapsulated the reasons why it is needed and why it deserves support, and it is perhaps easier to report what he said than to say it for myself.

It is also an opportunity to show that what is discussed at heavy-weight international conferences of e-Disclosure has a close bearing on what happens in UK courts and on what affects everyday litigation here. Read the rest of this entry »

E-disclosure conferences and seminars 2008

May 12, 2008

I have updated on my web site the list of conferences, seminars and similar events known to me for 2008, with hyperlinks to the programmes where they are available.

I have left up the programmes for the past events, since between them they give a good idea of what people are interested in and what are thought to be the key topics for this year. I say that because conference organisers have a good eye for what is topical, and those which I am involved with (which is most of them) have done an impressive amount of research. Read the rest of this entry »

Bringing International Discovery home to all

May 8, 2008

What is the relevance to UK solicitors of a presentation on International Discovery delivered recently by an Australian in Las Vegas? The answer lies in 200 documents – for that is the new mandatory threshold in Australia for using e-Disclosure in litigation. Every litigator should go to at least one e-disclosure conference this year to find out about a set of issues and solutions which are universal.

Those of us interested in promoting cost-effective discovery / disclosure in litigation must keep an eye on developments in other jurisdictions. Knowing what works and what does not work in the US or Australia is important. Discovery is well beyond the Wild West stage, but it is still an area in which the frontiers expand very quickly. New problems meet new solutions, both technical and procedural, and we need to know what others are doing. Read the rest of this entry »

Standard Mercantile Court Directions

April 17, 2008

The old cliches are the best of course, and I feel just now that we have reached the summit after pushing snow uphill for years (15 years in my case). The snowball is poised to roll downhill, gathering momentum and bulk as it goes.

His Honour Judge Simon Brown QC, a Designated Mercantile Judge at the Birmingham Civil Justice Centre, has today released a standard form of directions for use in all Mercantile Courts. It will be sent out electronically to all parties once the defence has been filed. As well as compelling a focus on issues, it includes a direction which implicitly reminds parties of their obligations under Paragraph 2A.2 of the Practice Direction to Part 31- the obligation to discuss any issues arising from searches for electronic documents. That, of course, should already have been done before the first CMC. Read the rest of this entry »

E-discovery progress in Australia

April 9, 2008

There is a more than theoretical interest in what is happening in disclosure in other jurisdictions. We are all facing the same challenges, and it is helpful to know what the problems, and the perceived solutions, are in far-away places – Scotland, for example, the US or Australia.

I mention Scotland because it came up last week when I met Bob Wiss of LexisNexis who was talking about CaseMap. There seems to be a wave of interest amongst Scottish lawyers in using CaseMap to relate the facts, documents and people to the issues in a case. I hope to go up to Edinburgh soon to find out what is happening there, not just with CaseMap but generally on the e-Disclosure front.

The US experience is by no means all about awful warnings as to what to avoid, and there is regular two-way exchange of information between the US and UK. Although the limelight gets hogged by big cases fought between giant firms over vast document populations, the majority of cases in the US are routine affairs handled by small firms, whose experiences – and costs constraints – are not at all remote from those of modest-sized firms in the UK. Read the rest of this entry »

Basketball pointers for litigation management

February 14, 2008

eDiscovery Tools is an Australian company which makes software for processing e-mail and other electronic documents for litigation and similar purposes. Its main product is eDiscovery Processor, used by law firms, corporate clients, government departments and litigation support bureaux to extract and index full text and metadata from hundreds of file types and to export the results into a format ready for the majority of litigation support platforms, including FTI Ringtail, Concordance and CT Summation.

It caught my eye at LegalTech last year, and stuck in my mind partly for its obvious power, flexibility and user interface, but mainly because of the demonstrator’s reaction when I asked about an audit feature – an obscure point to do with removed attachments. The chap stared into the distance for a moment and said no, that was not covered – but if I were to ask the same question in a month’s time, I would find that it was. Read the rest of this entry »

Trilantic sessions round off LegalTech

February 14, 2008

As in previous years, Trilantic organised three sessions for the last day of LegalTech. They are generally less formal than the other sessions and, as I have said elsewhere, take important subjects with a light tone.

I thought I would summarise what was said, but cannot in fact do so because I got an e-mail a few minutes into the first one, offering an opportunity to see someone whom I very much wanted to meet. My account of the sessions will necessarily be light on content.

The first one was called International eDiscovery Rules, Standards and Challenges. The Moderator was George Socha and the panelists were Browning Marean of DLA Piper, Laura Kibbe of Pfizer, Vince Neicho of Allen & Overy and Michelle Mahoney of Mallesons Stephen Jaques. Read the rest of this entry »

Australia updates Federal Court ediscovery rules

December 11, 2007

New court rules for handling electronic documents are expected in Australia before the end of 2007. They will bite on as few as 500 documents, there will be a court-appointed expert to manage cases, and there is a massive investment in the infrastructure of the courts. The UK will be left behind.

The reasoning and the arguments are the same as in the UK and the US. Articles about the pending rules somehow imply that Australia is behind us in this area, which is not my own impression as to e-discovery. Australia is way ahead of the UK in investment in the civil courts Read the rest of this entry »


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