Blurmany and Spain, you and me – the trade-off between convenience and privacy

May 28, 2014

Loss of privacy is the price we pay for the convenience of Internet and mobile technology. Different countries and different age groups accord varying degrees of value to the one and to the other. Germany and Spain have their own reasons for thinking about the balance more carefully than others. Is it worth doing without Street View because Honecker’s East Germany set neighbours to spy on each other? What, if any, is the relationship between the horrors of the Spanish Civil War, the so-called (and probably illusory) ‘right to be forgotten”, and the Google Spain case? Is there a difference in attitude between the generation above me (which lived through the war) and the one below (which happily surrenders its personal information in exchange for social benefits). What about me – what do I think?

I don’t purport to answer all these questions, but it is worth kicking them around.  If you can’t deduce what “Blurmany” is, the answer lies below.

The use of Google’s Street view in Germany came my way twice recently, once in connection with my own attempts to use it and once through a blog post by someone else which linked back to an old post of mine. The theme is the trade-off between loss of privacy and the benefits derived from data-sharing. The point about Street View is that its burden (the loss of privacy) is asynchronous with the benefit (which generally accrues to someone else).

First, why did I want to look at German Street View? My degree was in history, and I retain an interest in it. I like standing in the place where some historical event took place. In Oxford, where I live, you can still see the notch cut in a column in the University Church which supported the back of the platform on which Thomas Cranmer stood to hear that he would be burnt to death the following day; you can stand where he stood. Charles I escaped from Oxford by riding down the lane where I walk every day; Lawrence went that way also on his way to investigate a mound on Port Meadow (that’s T E Lawrence, not D H btw – they were interested in different kind of mounds). I can’t see a scene from a photograph without wanting to know exactly where it was taken. Read the rest of this entry »


Nigel Murray gets hip – and rides again for Help for Heroes

March 10, 2014

eDiscovery and data privacy consultant Nigel Murray is again cycling across northern France on the Big Battlefield Bike Ride between 1 and 8 June in support of Help for Heroes. Two things make this a special year – one is that this is the 100th anniversary of the start of the Great War; the other is that Nigel has recently had a hip replaced.

Most of us would consider that this entitled us to give it a rest. Nigel has always, however, made much of the fact that many of those who take part in this demanding ride are themselves disabled, some of them seriously so. He compares the difficulties posed by his own operation with those who are missing whole limbs, in many cases multiple limbs, and gets back on his bike.

His operation means that he has only just been able to start training. He doesn’t seem to need much encouragement, but let’s give it to him anyway by making a contribution through his fund-raising page. As well as allowing you to donate, this page gives you more information about the adventure.

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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 »


Evidence, privacy and proportionality at Lawtech Europe Congress in Prague

January 30, 2014

I have no particular ambition to write up events as soon as they finish. Distance lends perspective, and anything worth reporting at all will be as valuable a couple of months later. The Civil Procedure Rules of England and Wales gave me enough to be getting on with at the tail end of last year and I only now turn to what was covered at the Lawtech Europe Congress in Prague, the second one organised there by Frederick Gyebi-Ababio.

My own interview filmed on the day gives a summary of why it is important to hold events in central Europe, and correspondingly important for eDiscovery people be there. Prague sits in the middle of a big region and one which is full of potential, not least because of its trade with the US. It is important for businesses and those who advise them to understand the expectations of US discovery, both because they have to face it and because it will become increasingly necessary for these jurisdictions to adopt their own discovery rules – as I say in the interview, a jurisdiction which establishes the content and validity of documents by notarised prints or screenshots has some catching up to do.

This is not just because of litigation – we see a activity by regulators from the US, the EU and within each region, all of whom wants to know what the story is. The story lies in the electronic evidence, and whilst much of the interest perhaps still lies in criminal investigations, civil eDiscovery cannot be avoided. Those who provide professional and technical services will cede the ground to the big four consultants, who are already there for other reasons, if they do not register their presence to some extent.

Paul Salazar of Siemens gave the keynote address, sponsored by Exterro. He ranged broadly over the duties of internal counsel, describing the processes which they must develop in order to anticipate and manage eDiscovery demands.

The emphasis on process can easily obscure the importance of data as evidence. Yuval Ben Moshe of Cellebrite opened the show with a panel whose focus was eDiscovery and the rise of evidence on mobile devices. He had as his panel members Patrick Burke eDiscovery Counsel at Reed Smith, Jo Sherman of edt. and Damian Murphy, an English barrister establishing his own chambers specialising in eDisclosure.

2013-10-E-4236Damian Murphy, Jo Sherman, Patrick Burke, Yuval Ben Moshe

Between them they gave us a good balance between the technical components and the need to focus on what really matters. It is not necessary for proportionality to be enshrined in the rules to get the idea that resources must be proportionate to what you are trying to achieve.

My first panel covered the relationship between scope, method and cost – how much do you need to collect, what is the best way of doing it, and how do you keep the costs within reasonable bounds whilst doing a good job? Read the rest of this entry »


UK court orders disclosure against French party despite Blocking Statute

September 30, 2013

Those who have read my occasional fulminations about US courts ordering discovery in breach of French blocking statutes will recall that much of the argument turns on whether the French will actually enforce the statute by imposing penalties on those who export data. In an article called Cross-Border Discovery – Federal Judge makes a monkey of the cheese-eaters, I put it this way:

…it is perhaps relevant to consider the likelihood that the French will act to enforce the blocking statute. I say “perhaps relevant” because I am not entirely convinced that the “due respect to the data protection laws of any foreign sovereign” lies in the pragmatic assessment that the French will not react. One can illustrate my point this way: a combination of resource cuts and an attachment to their cosy, warm police stations means that the chances of an English policeman arresting a burglar are pretty slim – the actual statistics are the source of much debate and deliberate, self-serving obfuscation, but a career in burglary is fairly risk-free in the UK.  You would not, I think, find a US judge willing to approve of UK burglary on the basis that the police are unlikely to do anything about it.

You may be interested to know that the English High Court has recently considered the same factors, concluding that discovery should be ordered. US lawyers should resist the conclusion that this means that the argument has suddenly become respectable so far as they are concerned. Blocking statutes raise the same issues as the EU-wide data protection and privacy laws, with the difference that they are expressed to be absolute. If all this was a problem before we learned about PRISM, how much worse is the position now?

The case is National Grid Electricity Transmission Plc v ABB Ltd & Ors [2013] EWHC 822 (Ch) (11 April 2013). I am obliged to my friend Browning Marean of DLA Piper US for drawing my attention to it.

The opening sentence leaves us in no doubt as to the central issue:

These applications raise an important question as to the approach the court should take in the light of the so-called French blocking statute, French law No 68-678 of 26 July 1968

This is a complex judgment, full of quotations from earlier cases and the (divided) opinions of the (mainly French) experts whose views are reported. Extracting what seems to be important in sequence will give you a broad idea of the issues. If you want more, you may need some damp towels for your forehead. Read the rest of this entry »


Germany moves to restrict US data transfers as PRISM concerns grow

August 12, 2013

Buried deep in my article Cross-border discovery and privacy gaps widen thanks to PRISM and trolls was a reference to an article by Hunton & Williams called German DPAs Halt Data Transfer Approvals and Consider Suspending Transfers Based on Safe Harbor, EU Model Clauses.

I should, perhaps, have put that at the top of my article, because it is probable that its significance – which appears clearly from its heading – may have been missed in amongst the other topics covered. It was, perhaps, the most important single thing in what was a long article.

Those who find it necessary to collect data for the purposes of US civil litigation, or in order to comply with a regulatory requirement, are used to the difficulties which are posed by the conflict between broad US discovery requirements and EU restrictions. The general message, from me at least, is that almost anything reasonable is possible, provided that the legal and technical difficulties are identified promptly and shared with opponents, courts or regulators, and provided that technology is used in-country to identify and filter out personally identifiable information (PII), both prerequisites for any attempt to win agreement from the demanding party, or obtained from the court by reference to the adequacy of the steps taken.

The threat from the German data protection authorities raises the game somewhat. The apparent restrictions extend beyond the personally identifiable information which is the usual concern, and to all data as a result of fears about US analysis and the use which might be made of it. Read the rest of this entry »


Cross-border discovery and privacy gaps widen thanks to PRISM and trolls

August 1, 2013

The eDiscovery world was not gracious enough to take a break while I was travelling recently, and I come back to a mass of things to write about. Having cleared out the things with deadlines – webinar notices and the like – I can pick what comes up first from the stinking pile which has gathered in EverNote in my absence. Privacy and eDiscovery will clear a good few source articles out of the pending folder.

eDiscovery people tend to see the difficulties of cross-border discovery as a series of logistical problems, additional hurdles to be jumped when the already difficult task of data collection involves foreign jurisdictions. There are privacy laws to observe, and practical difficulties of language, time zones and culture to face. It is easy to overlook the relationship between these hurdles and wider issues of personal privacy.

The latter have been in the headlines recently. The PRISM revelations should have come as no great surprise – the US has the resources, the motive and an historic indifference to the sanctity of private information. More surprising, perhaps, is the discovery that France and Germany (and others) operate surveillance systems at least as comprehensive and intrusive as those of the US. I heard someone say recently how Germany’s Chancellor Merkel is affected by her upbringing under the Stasi, but we now see that Erich Honecker was a mere amateur when it comes to data collection about citizens, and hopelessly ill-equipped in technology terms; France postures unhelpfully against other countries with its blocking statutes, while itself aggressively collecting and using private information.

At the same time, the UK is facing up to a conflict between privacy and free expression on the one hand, and protection – protection from crime and terror, from porn and from internet abuse by “trolls” – on the other. Prime Minister David Cameron proposes porn filters, whilst apparently having no idea of either the technical or the democratic implications of closing off a section of Internet content.

The road which begins by blocking offensive pornographic content leads very quickly to control of other things. Restrictions designed to protect children from bare flesh turn very quickly to restraints on comment about a government department. Who decides where the line lies between justified restraint of offensive things and the suppression of democratic views? Read the rest of this entry »


Vivian Reding: The overhaul of EU rules on Data Protection: making the single market work for business

December 5, 2012

Vivian Reding is Vice President of the European Commission and EU Justice Commissioner. Here is a link to the text of a speech given on 4 December 2012 in which she explains why she thinks we need a new data protection regulation.

It is unlikely that anyone will argue with the idea that a directive made in 1995 is inadequate for the challenges of 2011 now that the Internet, social networking, cloud computing and sheer volume have changed our concept of what data is, and have introduced new problems along with many benefits. We cannot argue either with the idea that any new regulation should be ideally be consistent across the EU and that it should be backed by sanctions consistently applied.

Consistency, however comes at a price, and that price is the acceptance that the EU Commission is entitled to impose a consistent regulation across diverse jurisdictions and cultures and that it has any idea how to make such a thing work. The Commission will say that this is precisely what the EU is for. Many of us will see that as a drawback, in both nationalistic and practical terms. The idea that anything emanating from the Commission will cut red tape – an express ambition behind the regulation and referred to in the speech – is frankly laughable. Read the rest of this entry »


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 »


What is legal when collecting and processing personal data?

October 22, 2012

As with so many subjects, cross-border discovery has many aspects to cover, and it is sometimes helpful to pull out a sub-set and look at it on its own.

A helpful page on the European Commission Justice website called Collecting and Processing of Personal data: What is legal?  focuses narrowly on the circumstances in Article 7 of the 1995 Data Protection Directive in which the collection and processing of personal data of individuals is legitimate. For those who want the full version, the text of the relevant parts of that is here.

The ones which cause trouble are the third and sixth in this summary list, that is, c) and f) in the actual Directive.

c) If processing is required by a legal obligation

f) If the data controller or a third party has a legitimate interest in [the collection and processing]

The last one carries its own restrictions by making it clear that the “legitimate interest” referred to must be balanced against the interests of the individual – the precise words are “except where such interests are overridden by the interests of fundamental rights and freedoms of the data subject”.

The third one, compliance with a legal obligation, raises the appearance of the hope that the “legal obligation” to comply with a US discovery request is enough to legitimise any data processing. It does not. For one thing, the legal obligation must be one to which the data controller is subject, and not all discovery demands impose such an obligation on the data controller.

More importantly, these criteria for making data processing legitimate are not exceptions to the general protection given by Article 6 of the Data Protection Directive (though they are sometimes described as such). Even where the discovery demand appears to impose an obligation on the data controller, it does not oust his obligations given by Article 6 which, for example, refer three times to “the purposes for which the data were collected”, providing expressly that data must not be “further processed” in a way “incompatible with the original purpose”.

That refers to the original collection, whose purpose will rarely have been for compliance with the present discovery demand. The “legal obligation” clause does not entitle companies to ignore for discovery purposes the basic principles which apply to all data processing.

I will stick to my expressed intention to keep this simple. If you want a fuller explanation of the inter-relation between Article 6 and Article 7, CyberMatron’s article called Curbing unwholesome desires spells it out. The context is the information which can be obtained from ISPs rather than eDiscovery, but paragraphs 8 and 9 are worth reading for their wider implications.

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Regional and personal data privacy controls in the local cloud from Bloomberg Vault

October 18, 2012

Compliance with data privacy controls is much more than an eDiscovery / eDisclosure problem. Those whose primary focus is eDiscovery tend to see data privacy compliance as an obstacle which stands in the way and complicates data collection for litigation or regulatory purposes, but the privacy laws of the EU and, increasingly, of other regions, present compliance challenges quite apart from potential discovery obligations.

The solution to a wide range of discovery problems lies increasingly in pre-emptive action – in defensible deletion, in pre-emptive tagging to give searchable labels at the moment of creation, and in instituting policies which define the status and life-cycle of data. This applies in any context, but is particularly valuable where personal data is or may be involved. Put the stuff in the right bucket, so the inescapable logic goes, and you simultaneously flag it for general compliance purposes and make it easy to identify for discovery reasons.

The latest extension to Bloomberg’s cloud-based enterprise information management service, Bloomberg Vault, gives physical form to this approach by the concept of the “Local Vault” which allows data compliance and archiving policies to be configured at the employee level by reference to the regional regulations which apply to the content, including e-mail, mobile communications, social media, instant messaging, files and documents. Read the rest of this entry »


Notes from Hong Kong – talking about world eDiscovery

June 16, 2012

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

Browning Marean of DLA Piper US is one of the few US lawyers who understands the difference between eDiscovery messages which travel and those which do not, and who is able to discriminate between messages of universal application, messages which apply only within the US, and messages which represent the necessary compromises which must be made where US discovery meets more restrictive rules elsewhere.

His secret lies partly in the comparative observations derived from his own travels, but more significantly from the fact that he bothers to read and understand local rules and culture before opining on the merits of the American way.  It is always a pleasure to speak alongside Browning for this reason, and I was delighted to be asked to talk to litigation lawyers at DLA Piper’s Hong Kong office and, via video link, to people in DLA’s Shanghai, Beijing and Singapore offices.

I called my talk eDiscovery Round the World, and covered recent pending rule changes in the UK (the eDisclosure Practice Direction and Electronic Documents Questionnaire, the new Rule 31.5 and costs management) and in Australia, Singapore and New Zealand, all of whom have made changes this year.

Some messages are universal – competence, cooperation, proportionality, and the growing trend towards proactive information governance as a substitute for mere reaction to events.

DLA Piper knows more about international eDiscovery than most – it has, for example, recently published a useful booklet called Data Protection Laws of the World. It was a privilege to be asked to speak to so many of its lawyers, and to hear something of the issues faced by all who practice in the region.

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EU Commission under fire for its data protection reforms

May 3, 2012

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

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

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

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

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

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

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Patel v Unite – order for investigation of deleted Internet forum

March 13, 2012

Here is an interesting judgment, Patel v UNITE the Union [2012] EWHC 92 (QB) (27 January 2012), which Professor Dominic Regan has pointed me to. The target of postings on a union Internet forum alleges defamation and harassment. The union claims that the forum has been deleted and that they cannot identify those who made the postings. What help will the court give to the alleged victim in his efforts to identify those who wrote about him?

The story, put as briefly as possible, is that anonymous union members made observations about Mr Patel which give rise to potential causes of action against them. He claims both that the postings amount to actionable libels and, in the alternative, that he has a cause of action under the Protection from Harassment Act 1997.  The forum had warned its members that their true identities might be disclosed to third parties, subject to relevant data protection and privacy rights.

Patel obtained a court order against Unite requiring them to make a reasonable search for the information and to serve a witness statement. Unite claimed that the information was no longer available, and resisted an order for examination of the relevant servers on grounds which included the data protection and privacy rights not only of those who made the postings but of everyone else who had used the forum.

The judge concluded that he had power to make such an order on the basis that, whilst identification of the alleged wrongdoers may not be achieved as a result, it certainly could not be achieved without the order. Protection against intrusiveness would be achieved by the appointment of an independent expert agreed on by the parties who would provide nothing more to Mr Patel then “information which identifies those responsible for the posts complained or which explains why (if that be the case) they cannot be identified”.

This, said the judge, met the requirements both of proportionality and of protection of privacy and data protection rights.

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EU promises data protection savings and reduced burdens on business

February 28, 2012

The European Commission has collected together information about its proposed reforms of the EU Data Protection Rules, including the press release of 21 January, the press conference with Vice President Viviane Reding of the same date, and a number of fact sheets, surveys, legislative texts and other information.

For those who like their source material raw, this is the place to look.

Vice President Reding has followed that up with an article on CNN called How Europe is Dealing with Online Privacy. Call me cynical, but if her “one-stop shop for businesses to deal with regulators”, and the employment of Eurocrats to run it, results in the promised reduction of administrative burdens and a saving of €2.3 billion a year for businesses then I will eat my proverbial hat. Read the rest of this entry »


Words are the easy bit: EU Parliament debates EU – US data privacy concerns

February 24, 2012

An article on EUObserver.com reports on a debate last week in the European Parliament which highlighted the conflict between US demands for data and EU privacy legislation.

The article’s title is Commission Downplays Parliament EU–US Data Privacy Concerns – “downplays” being Eurospeak for “brush it under the carpet and pretend it is not a problem”. Justice Commissioner Viviane Reding’s answer that a US law enforcement authority would have to use “existing channels of cooperation and mutual legal assistance agreements” to get data from companies in the EU does not reflect the view taken hitherto by those authorities when they make their demands. “Stand and deliver” better describes their approach.

It is not just US authorities. As an MEP pointed out, the “existing channels” do not help much when a US civil court requires the disclosure of data stored in the EU. Fears that US law could have “extraterritorial effect within Europe” and that European laws “could be over-ruled by third country laws” are legitimate fears as a practical and pragmatic matter – there is no need for US courts to assert expressly the primacy of US law when they can simply punish a party for failing to produce documents.

One MEP pointed out that it would be “ironic if it were easier for third countries to process European citizens’ data in their territory than for European entities to do so in Europe”.  It is not really a matter of one being “easier” than the other. The data is processed in the US in possible breach of EU laws either because the parties and courts are unaware of the restrictions or because the parties take the view that the Scylla of sanctions is more palatable than the Charybdis of EU fines and other penalties.

As I have reported elsewhere, we are beginning to see an appreciation on the US side not only that the comity of nations requires respect for the laws of foreign jurisdictions but that a combination of cooperation, transparency and technology ought to allow a reconciliation between US demands and EU restrictions, with recent recommendations from both the ABA and the Sedona Conference to that effect. Read the rest of this entry »


Huron eDiscovery Panel at LegalTech as the cross-border climate begins to change

February 20, 2012

My wide-angle lens is being repaired, so I have no photograph of the panel which Nigel Murray of Huron Legal moderated at LegalTech. There were eleven of us at the table for two consecutive sessions with the title A GC’s Nightmare – a US EDiscovery Request into Europe. The first part outlined the problems raised by the EU’s attitude to data protection and privacy and its conflict with US ediscovery requirements; the second part looked at practical ways to deal with the issues which arise. More than 140 people came to one or both sessions.

The panelists were chosen to give a rounded view of the legal and the practical problems from both sides of the Atlantic. Craig Cannon from Bank of America and Carter White of Lummus Technology Inc. represented the ones with the nightmares, the sleepless representatives of major US corporations whose business inevitably takes them into areas – and not just Europe – where US eDiscovery requirements conflict with more restrictive ideas about the use of documents and data. Amor Esteban of Hardy Shook & Bacon and Browning Marean of DLA Piper US offered the view from the US lawyers based in the US, whilst Farrah Pepper, recently moved from Gibson, Dunn & Crutcher to a role as in-house discovery counsel at GE had both viewpoints to offer. Natascha Gerlach is an attorney at Clearly Gottlieb in Brussels and she and Vince Neicho of Allen & Overy in London had the hands-on view from the European end. US Magistrate Judge Frank Maas of SDNY and Senior Master Steven Whitaker from the High Court in London gave the viewpoint of judges who deal with either end of the relevant requests. My role was to talk on the theme “How others see us” and to cover information governance. Nigel Murray was his usual urbane self, the conductor of an international choir whose singers were not guaranteed to sing to any pre-conceived score (there wasn’t one), but whose contributions covered every aspect of the problem.

With 300 words down just to say who was there, it would be foolish of me to try and summarise what each panelist said. Quite apart from anything else, whilst we had each chosen or been given our defined topics, there was no published running order. This allowed Nigel to follow themes as they developed, but since none of us knew who was going to be called next, this scribe had no realistic chance of capturing the contributions as they emerged – try doing this when you are on a panel, and you end up missing your own cue, conscious, perhaps, that you have just been asked a question in front of 140 people but with no idea what it was. Read the rest of this entry »


Information Governance, UK eDisclosure and International Discovery in three days

January 27, 2012

In an ideal world, I would keep the week before LegalTech free.  Product announcements pour out with accompanying (and welcome) invitations in advance to find out about the new developments (that is preferable, incidentally, to those who make big announcements and assume that I will pick up on them). The diary needs constant adjustment as I ditch optional LegalTech sessions in favour of fitting in meetings. My own LegalTech sessions (of which more below) require preparation. Computers, cameras, address books need preparatory attention, and reference papers must be copied somewhere accessible. A week away involves boring domestic details of shirts and shoes and suits, and you just can’t get the servants these days.

Just the week, all in all, to have a big webinar to moderate, a seminar to lead in the North of England and an invitation to speak at a conference in Brussels on three consecutive days.  And in the middle of all that, the EU commission announces a re-revised data protection regulation just as I have finished reading the 116 page leaked version.

Two consequences follow. One is this, a compendium article (which I rarely do) pulling together multiple threads as an alternative to overlooking them all. The other is that I have undoubtedly missed things which I would normally have caught. For the avoidance of doubt (and conscious as I am of a rough duty of balance in what I write) the difference between things I have covered and things I have not written about is one of timing rather than any perceived priority of importance.  if the news broke whilst I was in an aeroplane or under the Channel, then I may have missed it. Read the rest of this entry »


Delay for Draconian Data Protection Regulation

January 18, 2012

The term “displacement activity” has a technical meaning in animal biology, something I am happy to leave to the animal biologists. The lay use of the term connotes some activity undertaken in order to avoid having to do something else which is both imminent and important. I spent most of the run-up to my College of Law exams, for example, writing stories and articles about things which interested me – anything to defer having to learn about trusts and torts.

I am fortunate that I eventually found a way to monetise my displacement activity, making a business out of writing stories and articles about things which interest me. Even now, however, it occasionally becomes necessary to focus on something inherently dull, and nothing can be duller than an EU regulation  (or, come to that, anything else which emanates from Brussels – even its scandals make one yawn). I was not therefore thrilled when someone leaked the draft texts of the General Data Protection Regulation and the Police and Criminal Justice Data Protection Directive, because that imposed a duty to read at least the first of these. It runs to 116 pages in its English-language version, so it could, if you printed it, serve as a pillow when your eyelids start to droop, as they will about three pages in.

A quick skim took me to the usual bit which describes how many more EU bureaucrats will be needed to carry on the good work, and I closed it quickly in case I broke something in rage (in the interests of wider Anglo-EU understanding, I should tell you that the French for “pen-pusher” is “gratte-papier”). Read the rest of this entry »


Plenty happening in eDiscovery for the beginning of 2012

January 8, 2012

If Friday’s flurry of activity on my Google+ page and on Twitter suggests catch-up and deck-clearing then that is exactly what it was. The Google+ page was set up for short snippets which, whatever weight they actually deserved, were not going to get a lovingly-polished and fully hyperlinked blog post. They are a way of expanding on my tweets, re-tweets and favourites; the full rationale for this is set out in my post New eDisclosure Information Project page on Google Plus for short eDiscovery posts.

The deck-clearing was needed for two reasons in addition to the obvious wish not to miss good content. The planning calls have started for forthcoming webinars and conferences, and I wanted the weekend clear for follow-ups to them, for other things which need prolonged concentration and for planning for that annual quart-into-a-pint-pot, the LegalTech calendar – I know I will not make it to most of the sessions I mark down, but it seems respectful to try. As today’s posts show, Friday morning’s catch-up was rather defeated by Friday afternoon’s new announcements.

It is perhaps worth setting out what January’s events are, pulling together posts which I have already written about them.

ESIBytes podcast on the New York Model Rules

I am taking part in a podcast recording on Monday 9 January organised by Karl Schieneman of ESIBytes. The subject is the Pilot Project regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York. The more important participants are Ariana Tadler from Milberg and Maura Grossman from Wachtell Lipton who were involved in the Pilot Project.  My role is to talk about the UK’s eDisclosure Practice Direction 31B and the Electronic Documents Questionnaire annexed to it. Whilst the UK was the first to formalise the structured exchange of information in advance of a case management conference, those of us who drafted it were influenced by the lessons, positive and negative, coming out of the FRCP meet and confer process. This iterative exchange of ideas is valuable beyond the two jurisdictions taking part in this podcast. Read the rest of this entry »


European Data Protection: Coming of Age – Brussels 25–27 January 2012

January 3, 2012

The Fifth International Computers, Privacy and Data Protection Conference takes place in Brussels between 25 and 27 January 2012 under the title European Data Protection: Coming of Age.

Monique Altheim of The Law Office of Monique Altheim is organising and moderating eDiscovery sessions on Thursday 26 January. I am on the panel, together with several others including James Daley of Daley & Fey LLP, Willem Debeuckelaere of the Belgian Privacy Commission and the Article 29 Working Party, Amor Esteban of Shook, Hardy & Bacon, Dominic Jaar of KPMG, Nigel Murray of Huron Legal, George Rudoy of Integrated Legal Technology LLC, and Master Steven Whitaker of the Royal Courts of Justice.

Between us, we will cover eDiscovery rules and regulations relating to basic principles such as preservation, litigation hold, the EDRM and spoliation, we will look in a practical way at problems arising from cross-border eDiscovery in the EU, and will also cover newer trends such as predictive coding, social media and the cloud.

Electronic discovery is only one of the subjects covered during the three days. The full programme is available here.

A few days later, three of us from that panel – Nigel Murray, Master Whitaker and I – with others, will be speaking in a two-part session at LegalTech in New York run by Huron Legal with the title A GC’s Nightmare: a US eDiscovery Request into Europe. The other panellists are Craig Cannon of Bank of America, Rich Chandler of CB&I, US Magistrate Judge Frank Maas, Browning Marean of DLA Piper USVince Neicho of Allen & Overy, and Farrah Pepper of Gibson, Dunn & Crutcher.

The world has moved on in the five years since I first started speaking about the conflict between US discovery and EU data protection and privacy. EU audiences are coming to see eDiscovery as more than just US legal imperialism; US lawyers and courts, at least those who attend LegalTech, are beginning to understand that data protection and privacy laws must be managed rather than trampled on. It is good to have the opportunity to speak to both audiences within a few days.

Brussels is easy to get to from London – indeed, it is easy from Manchester, which is where I will be on the night before our panel at a seminar with Hobs Legal Docs. Any lawyer, whether in-house or external, whose company or firm has any interests beyond its own postcode would do well to be there, and not just for the eDiscovery panel.

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Oxford tramples on privacy with CCTV in taxis

January 1, 2012

Given that privacy is one of my professional subjects, it is interesting that my home city, Oxford, should be blazing a trail in trampling on privacy rights, with a compulsory scheme requiring taxis to make video and sound recordings of their passengers – the BBC story is here.

One of the expressed reasons for this is the protection of taxi drivers themselves, despite the fact that most of the taxi drivers are opposed to the scheme – not least, one supposes, because the cost of installing the equipment amounts to yet another tax on living imposed on businesses by pen-pushers who are themselves immune from commercial pressures. There are exceptions, of course, but English local authorities are generally staffed with low-grade troglodytes whose ability to comprehend anything falls far short of complex concepts like privacy, and who have gathered power in recent years far outstripping their abilities or intellectual capacities. Again, there are exceptions, even in Oxford, but the councillors who notionally lead such authorities tend to be very small people with delusions of their own importance.


Oxford is a breeding-ground for political and bureaucratic meddling as well as the home of the Clarendon Building, the Bodleian, the Emperors and the Sheldonian (Photo by Chris Dale)

The word “Regulation” in the title of Labour’s Regulation of Investigatory Powers Act 2000 somehow implies greater control over those who exercise powers of investigation. In fact, the act authorised even little drones from local authorities to make use of covert surveillance, and many of them set to with a will for what were often, according to the House of Commons Home Affairs Committee, “petty and vindictive” cases. Even Labour became concerned at the extent to which the paper-shufflers abused their powers, and new rules imposed some restrictions and authorisation procedures.

The compulsory use of CCTV in taxis represents a slightly different strand – Big Brother’s Little Helper may now have to ask his line manager before going through your dustbins, but remains free to impose his care and concern for your welfare, whether you like it or not. This is part of the stifling interference in every aspect of life which was so characteristic of the Labour years and which the coalition government has failed to cut back despite its promises – a drawback, perhaps, of having to appease the Liberal Democrats, whose solicitous care about us over-rides our expectations from both parts of their name – there is little which is either liberal or democratic about them, but I guess that “Redistributive, Anti-Business, Pro-European Control-Freaks” would not make a good campaigning label. Read the rest of this entry »


IQPC Munich eDiscovery themes recur around the world

November 19, 2011

I was not sorry when my plane’s wheels touched down at Heathrow on my return from IQPC’s Information Retention and eDiscovery Exchange in Munich on Wednesday night, bringing to an end 28,000 miles of eDiscovery travel in six weeks. A few hours later, I was on my way to London to talk to a law firm about the UK eDisclosure Practice Direction in the company of Nigel Murray of Huron Legal – the e-Disclosure Information Project back on home turf. Meanwhile, US Magistrate Judge David Waxse, Judge Herbert Dixon and Jason Baron were all on their way from Munich to Washington for the Georgetown Advanced eDiscovery Institute. Within hours of my saying goodbye to Judge Waxse in Munich, tweets started rolling up my screen reporting on his contributions to a judicial panel at Georgetown.

The Problems and the Players

E-Discovery touches a lot of corners. It has multiple players: there are the companies whose data must be found and produced for court proceedings, for a regulatory investigation or for internal purposes, and within the companies are multiple duties and responsibilities which are not necessarily aligned. We have the lawyers who advise them, all too often reactively rather than in anticipation of problems. There are the judges and regulators who manage proceedings and who have an interest in efficient and proportionate outcomes. Lastly, there are the suppliers whose technology and consultancy helps address the problems. eDiscovery has many facets – an ever-wider range of data sources and types, matters of budget and reputation, and overlays of privacy and HR; the issues arise in very similar form in many different jurisdictions.

Conferences like IQPC’s Munich event provide an opportunity for all these people to discuss the problems and the solutions in the sessions, in prearranged one-to-one meetings and in less formal gatherings in bars and restaurants. One must pay a particular tribute to the two US judges mentioned above, Judge Waxse and Judge Dixon, and to the UK’s HHJ Simon Brown QC, all of whom emphasised that they came to learn as well as to speak about the issues which face court users.

Welcome to Munich

IQPC’s European events seem to get more than their fair share of external complications. Two years ago, the ash cloud prevented the attendance of several delegates, speakers and sponsors in Brussels; last year we were nearly snowed in in Munich; this year fog caused delays and, for some, re-routing via Stuttgart. Most of us got there in the end. The venue was the Kempinski Hotel Airport Munich,  a short walk from the terminals, and nothing at all like the picture which the dread words “airport hotel” usually imply. It  is a stylish place, with a big attractive bedrooms, good food, a convenient set of conference rooms and a bar which seemed to have no closing time.

I inevitably come across the occasional minor problem on my travels – screaming brats on planes, setting off without my passport, losing my luggage, or not being able to find a decent cup of coffee or somewhere to smoke. This is the first time, however, that I have heard the receptionist say “We have no booking in that name”, followed by “…and we have a big conference going on” (to get the full flavour of this, you need to imagine that it is very late at night, with cold fog swirling around what may be the only accommodation for miles). Fortunately, they found me a room. The coolness of my reception was washed away by the fact that the bar was full of the agreeable people whom one meets at many conferences. Read the rest of this entry »


Huron Legal: Cross-Border eDiscovery Breakfast in New York on 21 September

September 16, 2011

The US is considering possible rule changes in relation to preservation. The UK is tackling case management and costs management. Australia is chewing over the recent report on electronic discovery. New Zealand has a new ediscovery practice direction coming shortly. There are are different points of view being expressed about all these things, but they have in common that their underlying problems, however difficult, are capable of resolution. We may have different views on what must be done to reduce the time and costs of managing electronic discovery, but there is no deep conflict as to the objective within each jurisdiction.

Cross-border eDiscovery, like anything else which involves the laws and practices of more than one jurisdiction, inevitably has an additional dimension.  That goes beyond relatively straightforward questions, occurring in many matters of law, as to  whose rules to play by, because discovery often raises direct conflicts which seem incapable of resolution. This operates at many levels, from fundamental differences of principle down to matters of mechanics. If your starting point is that one jurisdiction favours openness above all whilst another believes that privacy and data protection rules are paramount, then real conflicts are inevitable.

The Huron Legal Institute
is giving a complimentary breakfast briefing about Cross-border eDiscovery on 21st September in New York, starting at 8.30am. The speakers come from the judiciary, from corporate counsel and from lawyers skilled in this area as well as from Huron Legal, and the agenda is as comprehensive a survey of the issues and approaches as one could hope for.

The program is here and it includes a link to enable registration. I know most of the participants and am willing to guarantee that this event will amply repay your attendance.

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EU-US EDiscovery – Data Transfer Role-Play at CEIC

May 23, 2011

One of my reasons for going to CEIC 2011 in Orlando was to take part in a panel about international EDiscovery. The panel was called International EDiscovery: Data Protection, Privacy and Cross-Border Issues and was led by Patrick Burke, Assistant General Counsel at Guidance Software. The rest of the panel consisted of Conor Crowley of the Crowley Law Office, Dominic Jaar of KPMG.

One is well used to the idea that different jurisdictions have different discovery rules, and we may sometimes find other peoples’ rules incomprehensible. Someone at CEIC described the UK disclosure obligation to me as “I’ll give you what I feel like giving you”. That is not a description we recognise, but we can see that our rules (which require a lawyer to disclose all documents which are supportive or adverse to the case of his own client and of any other party) appear as treason to those from a jurisdiction where the scope of a Request is a fiercely fought over. For our part we think of the US approach as “Gimme everything you’ve got which might have any bearing on anything which might conceivably be relevant to the issues or I will have you sanctioned”. US lawyers see that as fighting hard for their clients; we see it as a grotesque waste of time and money. Chacun à son goût – we can each play as we like in our own playgrounds. Read the rest of this entry »


Getting on with the basics at CEIC as the eDiscovery world spins a little faster

May 20, 2011

I could sit here all morning trying to come up with a succinct heading which captures everything which is going on in eDiscovery / eDisclosure at the moment. The big things happening at a corporate level have greater long-term significance than mere changes of ownership, but the conferences, the articles, the cases and the rest don’t stop because of them. I have been at back-to-back events – IQPC in London and CEIC in Orlando, with a panel about the Bribery Act at Pinsent Masons with thebriberyact.com in between; there is more coming up. My heading, workmanlike rather than inspired, reminds us that this everyday stuff goes on daily whilst a bigger game plays out in corporate board-rooms.

I wrote up IQPC before I left for Orlando and will write about the Pinsents event and CEIC shortly. I rarely post things (or even tweet) when I am away, and this short piece is just to confirm that I am still (or again) at my post. The sentry duty analogy is deliberate: just before I left, Autonomy bought Iron Mountain’s digital assets; Gartner’s Magic Quadrant for eDiscovery Software came out whilst I was in Orlando; I had just parted company with Eddie Sheehy of Nuix when the announcement came through of a major investment in Nuix; I dropped off for a few minutes yesterday evening (I don’t need much sleep, but whole nights spent flying have to be made up somewhere), and woke to discover that Symantec has agreed to buy Clearwell Systems (the links are to their respective announcements); the wires are full of Recommind’s announcement of a partnership with email archiver Smarsh. The international ediscovery world is spinning faster than it did last week.

These are all interesting and important and I will come back to some of them in due course. Much of it is analysts’ territory, and I am concerned more with the nuts and bolts of e-discovery / e-disclosure – what judges are thinking, what lawyers should be knowing and doing, and what practical problems face them. I will let the news stories simmer whilst I catch up with what I have been hearing and speaking about at the hands-on level. They are different strands of the same story anyway – the continuum from email archiving through to ediscovery for litigation and compliance purposes appears in both the company stories and the day-to-day practical stuff. Read the rest of this entry »


AccessData conference carries electronic discovery message to Germany

March 1, 2011

I am very much looking forward to moderating an electronic discovery conference in Frankfurt on 22 March. The hosts are AccessData and the speakers are drawn from a broad range of legal, technical and compliance backgrounds, and from well-known firms and companies such as the Luther Law Firm, Siemens AG, DRSDigital, Allen & Overy and Alvarez & Marsal. The programme is here.

Between them, these speakers will cover the growing importance of ediscovery in Germany, forensic services from the viewpoint both of those who collect and manage data and of those who advise on it, and matters of compliance and due diligence. Brian Karney, President and COO of AccessData, rounds the conference off with a session called Getting the Job Done: the Technology. My role is to open the show with a welcome and introduction, to keep us to time (no small challenge with this number of speakers crammed into one afternoon) and to lead the closing panel.

The number of corporate counsel at IQPCs ediscovery conference in Munich last year showed what an appetite there is for discussion about ediscovery in Germany. This is hardly surprising: Germany has the fifth largest economy in the world and the largest in Europe, with a 3.3% rise in GDP in 2010 following an earlier fall. Its exports in 2010 are estimated at $1.337 trillion; 6.7% of this went to the US, which also provided 5.9% of its imports.

That volume of trade with the US, quite apart from US investment interests, inevitably brings US-related litigation, regulatory and compliance implications. Germany’s position in the EU brings growing activity of the same kind, both from Brussels and of domestic origin. The last two years have seen Germany as one of the leading (perhaps the leading) player in the development of data protection and privacy activity. Like other civil countries of mainland Europe, Germany has no discovery tradition such as is found in the US, the UK and other common law countries.

There is, therefore, much to learn in a short time. Anecdotally at least, there seems to be recognition of this, at least amongst the bigger German companies and I anticipate a good turnout for an event as broadly structured as this one and with a cast of this calibre.

The venue is the Schlosshotel Kronberg outside Frankfurt. Who could not warm to an establishment which describes itself as Very Britisch and talks of Tradition, Hightea-Kultur und Schlossatmosphäre (Tradition, high-tea culture and castle atmosphere) which, it says “are inevitably associated with Great Britain”. Quite so. The conference finishes with a dinner at which I suspect the day’s discussions will continue.
There are places left for this event. The AccessData contact details are on the programme.


Welcome to First Advantage as a sponsor of the E-disclosure Information Project

February 18, 2011

I am very pleased to welcome First Advantage Litigation Consulting as a new sponsor of the e-Disclosure Information Project.  First Advantage was already a well-established forensics, litigation consulting and eDiscovery company when I met them at my first LegalTech in 2007; they set up in London shortly afterwards. I often come across Robert Brown, now VP of Eurasia Operations, at conferences, where he speaks lucidly about forensic data collection amongst other things; and I knew Drew Macaulay, Director of Business Development, before he joined First Advantage.

Back in 2007, the forensic and litigation function appeared on the First Advantage website as just one component amongst a broad range of business and information services. The wider group still does all that, but over the years the litigation arm acquired a strong identity of its own (as First Advantage Litigation Consulting) in the US, the UK, Europe, India and the Far East. First Advantage was acquired by Symphony Technology Group at the end of 2010. The result is a niche specialist company within a strong umbrella group.

After that first meeting at LegalTech, I met up with the then Executive Vice President for Litigation Consulting to talk about the company’s plans – it was exactly 4 years ago this week as it happens, and he was in London to recruit staff for the new office. The move to London, he said, was made largely because of the litigation and regulatory involvement in Europe of First Advantage US clients. Proximity was the initial driver for the move to London, as well as the need to manage EU privacy and data protection laws. The ambition was to make the London (and Brussels) offices into players with local business in their own markets within two years. I would guess (I don’t know) that the target was reached well within the two years and First Advantage Litigation Consulting has become an established player in the London e-disclosure market. Read the rest of this entry »


Cross-Border and Multi-National eDiscovery at LegalTech from FTI and Epiq

January 27, 2011

I have written already about those sessions at LegalTech 2011 in New York which have a UK element in them (see Strong UK presence at LegalTech 2011). As I said in that article, it is impossible to list, let alone expand on, every session which is likely to be interesting or which involves someone I know.

As always, I marked down the sessions I wanted to attend but have gradually had to concede them as the time needed for meetings, and for the two sessions which I am moderating (Monday at 14.00 and Wednesday at 12.15 since you ask), began to exceed the total time available. I have managed to cling on to the Tuesday morning sessions.

Last year at LegalTech I was involved in two panels on multinational and cross-border disputes, a subject of inexhaustible importance to US lawyers. With a bit of rushing about, I should be able to attend at least parts of the three overlapping sessions which cover cross-border matters this year on LegalTech Day 2.

I have already mentioned the two sessions run by Epiq Systems, Navigating the Challenges of Cross-Border Regulatory Investigations at 9.00am on Tuesday, and Managing a Global Review while Minimising Risk at 10:45am. Between them, they include three UK people with whom I speak regularly at conferences, Vince Neicho of Allen & Overy, Professor Dominic Regan and Senior Master Steven Whitaker as well as other people worth hearing.

Overlapping them, however, is a session run by FTI called Multinational Discovery: Privacy and Process. Joe Looby, Senior Managing Director at FTI, is the US lead on FTI Investigate , which pulls together the human and technology elements needed for rapid investigations across national boundaries. The thorny problem there, apart from the logistical one, is often the conflict between the need to extract as much information as quickly as possible and the restrictions of local data privacy laws. I interviewed Craig Earnshaw, FTI Managing Director – Technology in London, about this recently and am looking forward to this session to round out a paper which want to write on the broad issues as well as on FTI’s specific service.

The FTI Investigate web page has some case studies which I commend to anyone who is interested in this area. I have mentioned before the  RAND Europe Two-Part Report: E-Discovery and Legal Frameworks Governing Privacy and Data Protection in European Countries which came out in October and which gives a good overview of the issues arising in the EU. That can be found here on FTI’s website.

The other main draw for this session is Amor Esteban of Shook Hardy Bacon LLP. I did a panel with him at the Georgetown Advanced Ediscovery Institute (see  International discovery, sanctions, ethics and US-UK comparisons at Georgetown and will be glad to hear him again.

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Strong UK presence at LegalTech 2011

January 10, 2011

LegalTech 2011 is only a few days away and the programme is packed. Almost everyone whose name has appeared in these pages is taking part in something, and I will not attempt to list them all. Following on, however, from my recent piece about the Georgetown Advanced e-Discovery Institute (see International discovery, sanctions, ethics and US-UK comparisons at Georgetown) and the growing mutual interest in US e-Discovery and UK e-Disclosure, I thought it worth drawing your attention to the sessions involving UK participants. If I have missed any, please let me know.

Epiq Systems have two panels involving well-known UK participants. Greg Wildisen of Epiq moderates a panel called Navigating the Challenges of Cross-Border Regulatory Investigations with panelists including Professor Dominic Regan and David Cracknell of Slaughter and May’s London office. That is followed by a panel called Managing a Global Review while Minimising Risk moderated by Laura Kibbe of Epiq. The panelists include Senior Master Whitaker and Neil Mirchandani of Hogan Lovells in London. Non-UK participants known to readers of this blog include US Magistrate Judge Andrew Peck (who has teamed up with Master Whitaker in various jurisdictions, including Brussels and Hong Kong), and David Kessler who has recently moved to become Co-Head of E-Discovery at Fulbright & Jaworski – an entertaining and informative fellow, David, as I discovered to my relief when he was on a LegalTech panel which I moderated for Epiq last year (I say “relief” because it can be an interesting business, moderating panels of people you have never met before). Anyone interested in global and cross-border matters should attend these sessions.

Andrew Szczech of Kroll OnTrack UK takes part in a panel called Trends in Social Media and Cloud Computing. Jan Durant, IT Director of Lewis Silkin is on a panel called Business Processes Utilising SharePoint. Alex Dunstan-Lee of KPMG in London is doing a session called The Clearwell E-Discovery Platform: did you know? UK solicitor Mark Ross, VP legal solutions at Integreon, is covering Legal Process Outsourcing: Ethical, Practical and Legislative Considerations.

Apart from the UK, the non-US world is represented by Michelle Mahoney, Director of Applied Legal Technology at Mallesons Stephen Jaques in Australia, talking about the Intersection of Project Management and Practice Support. She was anointed Practice Management Champion at ILTA last year, so knows what she is talking about. Read the rest of this entry »


The cost of data security breach notifications

December 14, 2010

At first sight, the publication on 10 December of an article headed Data security – is Europe still lagging behind the US? brings a wry smile here. We are used to US articles speaking in condescending terms about everything from our teeth to our discovery processes, so it was faintly amusing to see such a heading in the week after the US managed to mislay so much diplomatically sensitive material.

The article is written by an insurer with an interest in encouraging awareness of data security risks, but that does not invalidate the message that companies must understand the potential costs. The article focuses on the cost of complying with the data breach notification requirements, particularly those of the US, when private information has been compromised. It does indeed seem anomalous that the privacy-conscious EU should be behind the US (at least from the perspective of an insurer) in facing up to the risk of security breaches. The article refers to “the lack of any uniform regulatory status of notification requirements” in the EU as being a reason why European companies are “lagging” in this respect. One might expect that lack of uniformity leads to an increased risk, so I am not sure that that is the cause of the disparity when it comes to buying cover.

It may be that EU companies have weighed the risk and decided advisedly that their risk profile is not such as to warrant the purchase of cover. It is also possible that, with money tight, budgets are being spent on reducing the risk than in insuring against the consequences of breach. A further possibility, and one which I favour, is that few companies have undertaken the risk assessment which sets the burden of compliance with security regulations against the cost of insuring against failures to comply. Read the rest of this entry »


IQPC Exchange in Munich: Information Retention and eDiscovery in Europe

December 13, 2010

The civil law jurisdictions of mainland Europe have no discovery tradition as it is understood in common law countries like the US and UK. The IQPC Information Retention and eDiscovery Exchange in Munich was an opportunity for corporate counsel to find out what matters, why it matters and what to do about it, as well as to meet service providers who can help them. The “adequate procedures” defence given by the UK Bribery Act sets a target which acts as a spur to the initiation of pre-emptive measures regarding information management.

Any discussion about electronic discovery in common law jurisdictions comes freighted with history, not all of it helpful. Common law discovery rules require the exchange of documentary evidence between parties to litigation. Our definitions vary, and our rules, case law and practice can produce different results; there may be more (the US) or less (the UK) skirmishing in advance as to the proper scope of discovery, and different jurisdictions have different ways of measuring compliance and of punishing defaults. The end result, however, is that a lot of documents are handed over. I may have strong views on how we should go about this and about how we can reduce the volumes in play without any risk to justice, but I will fight to defend the principles of common law discovery.

Civil jurisdictions, such as those in Europe, have none of this. I simplify for the sake of brevity, but the general approach in these jurisdictions is that the court decides what documents it needs to reach a conclusion. Those who seek other documents must specify them with a degree of particularity which effectively requires that they can say exactly what they are looking for.

The privacy and data protection laws which limit what you may hand over are less onerous when viewed in the context of this civil framework, for the fairly obvious reason that the discoverable volumes are smaller. It becomes easier to understand the EU Commission’s attitude to the impact of privacy restrictions once you appreciate how little is exchanged. This is the world for which the data protection and privacy laws were invented – Europe not only has incentives for minimising document exchange derived from its political history, but has no tradition anyway of handing over documents in civil proceedings.

US lawyers tend to see an obstructive Europe standing in the way of legitimate demands for information. It looks rather different from the perspective of a French or German company which, with no discovery tradition, finds itself under siege. Its links with US companies, whether as a parent, a subsidiary, sister company, or as just as a business or trading partner, bring demands for US-style discovery which appears to recognise no jurisdictional limits. A range of US authorities claim both regulatory and criminal rights over their documents. The EU has its own regulatory authorities and an unquenchable zeal for interference. There is proactive assertion of the rights of the individual against the state and against corporations. On top of all these external pressures comes the recognition that we cannot just go on collecting information at the rate at which we can now create it – a business incentive added to the external factors.

Conference Chairman Patrick Burke of Guidance SoftwareAll this gives a different flavour to e-discovery conferences in mainland Europe, even where the organiser (in this case IQPC) has a well-established London conference with almost the same title, and where many of the speakers are the same as those I meet everywhere else. The Munich event was, in IQPC parlance, an “Exchange” rather than a “Summit”, which means that the corporate counsel (who are the main audience) have pre-arranged meetings with suppliers whose offerings have been pre-matched to their expressed needs. The impression I got from speaking to both providers and delegates was that there was a high compatibility rate. The Exchange format also provides conventional speaker and panel sessions plus the opportunity to mingle and talk in the gaps and over meals. If my primary reason for going to these events is to speak at them, I am equally interested in meeting informally with delegates and suppliers, with as much emphasis on listening as talking. Read the rest of this entry »


Premonitions of what was to come

December 8, 2010

I have no idea what is happening in this photograph:

Chris Dale, Steven Whitaker, Denise Backhouse at IQPC Munich

That is not strictly true – I know that it was taken at IQPC in Munich last week just as I was about to moderate a panel on data protection with Senior Master Whitaker and Denise Backhouse of Morgan Lewis. I know too that everything was prepared – slides in order, confident of my subject, panel present and correct, audience in its seats, right country, trousers on, all the standard things to run through as a panel is about to begin. I had slept well, drunk little and felt fine. So why am I clutching my head?

Perhaps I had subliminal premonitions of things which awaited me – of the next day’s take-off in blinding snow, of the urgent demands by conference organisers for next year’s session topics which would hit me before I had written up this year’s, of the e-mail which observed in a non-specific way how interesting it is that my web site looks different in every browser when I thought I had fixed all that, or the letter from my accountant demanding last year’s figures which I would find on my return.

I was probably in fact just pushing my glasses up as we were about to begin. The session seemed to go well, and the conference as a whole was useful and interesting. A report follows shortly.

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Catching an eyeful in Leeds and a snowfall in Munich

December 3, 2010

The paucity of posts lately may lead you to think that all is quiet on the e-disclosure / e-discovery front. It is in fact a symptom of the opposite – there has been more than enough to keep me amused, and on things which seem to point to an increase in e-disclosure activity. My side-interest in civil liberties has provided a diversion, and I took a daring Saturday off to go to Leeds for a Phoenix Fall gig.

I have recorded October’s trips to Washington, Canada and Singapore. November has brought a London conference and one in Washington which I have yet to write up. I am just back from Munich for IQPC’s Information Retention and e-Discovery Exchange which I will also write up shortly.

These trips are the icing on a cake whose main ingredient is domestic and below the surface. I have been to a couple of major regional cities to talk to firms with the potential to capture work from larger but less agile players, and done the same with some London law firms. The expressed motive behind their invitations is to hear about the Practice Direction and Electronic Documents Questionnaire, which gives me the opportunity to suggest to solicitors that we have a window in which we can shape e-disclosure as we think it should be. The window will close if we start seeing judgments which apply old principles to new problems.

You will see shortly from my pending report of an impressive judicial panel at the Georgetown Advanced e-Discovery Institute that the developments in England & Wales – the Practice Direction, the Goodale judgment, the Birmingham costs-management trial, the spate of cases – are exciting attention in the home of electronic discovery; all we have to do is make the practice conform to the framework of rules which others are beginning to envy. If there is plenty to fear (have a look at these cases, for example), there is also opportunity to capture work from others and to offer new skills to clients. Read the rest of this entry »


A useful guide to sources on EU Data Privacy Laws

November 8, 2010

The Guidance Software Newsroom carries a new article by Denise Backhouse of the eData Practice of Morgan, Lewis & Bockius, LLP headed Master European Data Privacy Laws. I refer you to it because it is expressly intended as a guide to useful sources of information on EU data privacy and data protection, a subject which exercises many US lawyers but not, apparently, to the extent that they feel the need to learn about it in advance of their next major EU data collection exercise. Denise’s article may help them to understand what the issues are.

One key to understanding the problem is to know that no one has all the answers, and Denise rightly draws attention to the need to take local advice in each jurisdiction in which the data may have to be collected. As she points out, a “jurisdiction” is not just the whole EU, nor merely any legal state within the EU, but can include smaller units like individual Länder in Germany. Knowing even that much is a good start for those who tend to approach EU data collections as if the writ of an American court runs everywhere.

Denise and I were on a Guidance Software panel at IQPC’s conference in Brussels last year, and were more recently on a London panel organised by Recommind. The subject comes up again on a panel I am on at Georgetown on 18th and 19th November, and Denise and I are covering the subject, together with Master Whitaker at IQPC’s Document Retention and EDiscovery conference in Munich starting on 29 November. I am moderating, and Denise is the main speaker, as befits her status as one of the few US lawyers who is authoritative on the subject. Master Whitaker will talk about the use (and misuse) of the Hague Convention, and I will talk about the cultural differences which lie at the root of the conflict between US demands for documents and EU unwillingness to part with them.

You need practical as well as legal help when stepping into the deep waters of EU data collection, and that means a technology supplier with experience in the area. Sticking to those who have come to my attention recently (so don’t all write in if I have missed you off my list), FTI have recently announced a new consultancy service FTI Investigate aimed at helping with EU collections, I have written a paper (not yet published) about Iron Mountain’s services on this subject, Epiq Systems has a fully-staffed office in Brussels, and Trilantic (now part of Huron Consulting Group) has a section of its website which links to the laws of every relevant jurisdiction.

Look, perhaps, at the list of those sponsoring the IQPC Munich event referred to above which, in addition to most of those already mentioned above, includes AccessData, Alvarez & Marsal, Clearwell, Commvault, Ernst & Young, KPMG and Symantec. They will be there because this is territory which they know, so ring one (or more) of them up before you pack your bags to set off on what may appear to be a routine data collection exercise. But perhaps read Denise’s article first, and follow some of its useful links.

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Low-tech privacy breaches

September 30, 2010

Amidst all the proper concern about the use of technology in breaches of privacy, it is easy to overlook the ease with which we can give away information by more everyday means. Some examples illustrate what I mean.

My railway carriage this morning had more than its usual quota of people braying into their phones whilst the rest of the carriage tried to sleep or, in my case, to write an article. One such caller was involved in some capacity in litigation involving a departed employee – it seems that the company has a better case than it originally thought because of newly-found evidence about the ex-employee’s preparations to set up a competing business whilst he was still employed by the company. The speaker had not yet been able to find out more because he had not been sent the backup tapes for a particular custodian – presumably the ex-employee in question. A name was mentioned which I did not, alas, write down; if I had recorded it, I would be happy to repeat it here. Read the rest of this entry »


Turning e-discovery news and views into a community of interest

September 21, 2010

Those of us who work in e-discovery / e-disclosure get better and better at passing information and views between ourselves.  Web sites, blogs and Twitter allow us to keep up with developments – new products, company news and cases – in a market which changes all the time. Improvements in the mechanics of information delivery do not make it easier for new readers (which is the audience which matters) to understand it all. Can we turn this stream of information into a community of interest?

The word “community” has been hi-jacked by the woolly thinkers of the soft left. Private Eye runs a regular column pillorying those who write of meaningless “communities” whenever two or more people have some characteristic in common.  The expression “community of interest” has a meaning worth keeping, however, and is correctly used (and hard to replace) when different groups have common ground. The one in which I am interested is the loose assembly of lawyers, their clients, judges and technology providers who aspire to the proportionate use of electronic documents in litigation. That aspiration is purely notional in many cases, mainly because many of the players do not fully understand what the others need or can offer.

This article began as a way of covering many apparently disparate pieces of news or information in one place. As I wrote it, themes began to emerge which mapped on to some of the conversations which I have with lawyers seeking a quick ramp into the broad options which they face when e-disclosure becomes inevitable. We who have grown up as the industry grew up throw names and terms at each other, as if the audience shared the building-blocks of knowledge. They do not. Running several stories together may make for a long article, with loops and digressions as I expand on things which seem obvious to industry regulars, but those to whom it is all new may find that helpful.

One of the links which I intended to pass on anyway happened to be an interview in which Richard Susskind argued for better use of social media and for the development of a community of interest between the participants in the wider legal IT industry. That neatly tied in with my plan to base this article round a series of tweets, and suggested by extension that Twitter provides a ready-made core for such a community. It does so already for those on the inside. We need to invite the users in. Read the rest of this entry »


International eDiscovery Panel at CEIC

May 31, 2010

There is one major difference between the general run of discovery problems and those relating to international and cross-border discovery. The former are soluble – competence and co-operation coupled with judicial management would fix most ediscovery problems tomorrow; the trans-jurisdictional issues involve serious conflicts, not just of laws but of culture. As things stand, these seem irreconcilable, and it sometimes feels that the best we can do is to make people aware of and sensitive to the issues.

The panel assembled to discuss these matters at CEIC was well-qualified. M James Daley of Daley & Fey, LLP is Co-Chair of The Sedona Conference Working Group on International Electronic Information Management, Discovery and Disclosure (WG6) and a member of a delegation which recently met with the Article 29 Working Party in Brussels (see my article Sedona Conference WG6 presentation to Article 29 Working Party in Brussels. Dominic Jaar of Ledjit Consulting Inc., is Chief Executive Officer at Canadian Centre for Court Technology and is a member of The Sedona Conference’s working groups 1 (USA) and 6 (International). George Rudoy of Shearman & Sterling, LLP has more practical experience than almost anyone of managing and doing foreign data collections. Patrick Burke of Guidance Software was the moderator. Read the rest of this entry »


CEIC 2010 comes to an end

May 27, 2010

CEIC 2010 is winding down here in Las Vegas. Whatever measure you take – the quality of the sessions, the opportunity to catch up with people and meet new ones, the sheer numbers of people attending (1,300 or so), the venue, or the glimpses through the bus windows of this not-quite-real city on the way back from dinner last night – it has been a great success.

For those unfamiliar with it, CEIC stands for Computer and Enterprise Investigations Conference and is run by Guidance Software, whose data collection and processing applications are used all over the world for everything from one-off defensible collections to enterprise-wide network collection applications and the consultancy which goes with it. My particular interest, electronic discovery, is only a part of what the applications are used for – internal investigations, HR incidents, government and military needs, and rapid reaction to external or internal demands for information, are all covered. It is deeply technical stuff, and its users need technical training to match. CEIC allows all those involved – from hands-on lab types to decision-makers – to gather once a year, to top up their skills, to meet others with the same or adjoining skills, and to find out what drives the other players. The technical people increasingly need to know about the context in which they collect data, and those who devise strategy must have some idea of technical difficulties and solutions. Read the rest of this entry »


Listening to myself talking about e-Disclosure for the IQPC Information Retention and E-Disclosure Summit

May 5, 2010

I have been listening to a podcast which I made recently for IQPC as part of the run-up to their Information Retention & E-Disclosure Management Summit in London on 17-19 May 2010. It can be accessed from the Summit’s home page. It is not that I reckoned to learn anything new, you understand, nor is there any narcissistic pleasure in hearing the sound of my own voice, but it is no bad thing occasionally to know what the audience is hearing, as Gordon Brown discovered last week.

The recording covers recent cases, the proposed e-Disclosure practice direction and ESI Questionnaire, and the e-Disclosure elements in Lord Justice Jackson’s Report. It also considers the importance of learning about what happens in other jurisdictions, and the collision between the US and the EU on matters of privacy and data collection. It ends with the observation that this subject is one with opportunities as well as risks – there is work to be won by those who take the trouble to learn a little about e-Disclosure problems and the solutions. It ends with the exhortation that “‘Get on with it’ has to be the message of 2010″.

The recording is intended to provide a context for the Summit, in particular for the US-UK judicial panel. Read the rest of this entry »


The Franco-British Lawyers Society on cross-border e-Disclosure 17th of May 2010

May 1, 2010

The Franco British Lawyers Society have organised an evening session called Searching for evidence: a panel discussion on cross-border e-Disclosure from an English and French perspective. The event takes place on Monday, 17 May at 6 pm at Pinsent Masons, 30 Aylesbury Street, London EC1R 0ER.

The speakers are:

  • Mark Surguy: Legal Director at Pinsent Masons LLP.
  • Caroline Jan: Solicitor at Pinsent Masons LLP.
  • Claire Picard: Avocat at Salans.
  • Vicky Harris: Business Development Director at Merrill Corporation.

Registration is solely via the FBLS and places are limited. The event is free and includes a drinks reception. Contact Marie-Blanche Camps by email at yfb31@dial.pipex.com

You might also be interested in the FBLS events programme. I see from it that I missed an event in Edinburgh called The use of modern technologies in the Scottish and French court systems. The speakers included the Unit Manager of the Electronic Service Delivery Unit ‐ Scottish Courts and the Senior Legal Adviser of the E‐Justice working group of the Council of Bars & Law Societies of Europe. Both E-Justice and the use of technology in Scottish legal practice catch my interest, and I would have promoted this talk, or even attended it, if I had known about it.

I cannot, unfortunately, attend the 17 May Anglo-French event because I will be out at an Anglo-US dinner that evening with a group of judges – e-Discovery experts all – from both sides of the Atlantic. If we merged the two events, we could probably resolve any number of multi-jurisdictional discovery problems.

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EDiscoveryMap helps navigate cross-border issues

May 1, 2010

Monique Altheim, a New York qualified lawyer, has quickly established her blog, EDiscoveryMap, as a mine of information on matters of personal data, privacy, data transfer and cross-border transfers. I follow her on Twitter as EUDiscovery and EDiscoveryMap which keep me up to date both with her own writing and with other sources.

Monique attended the IAPP International Association of Privacy Professionals Global Privacy Summit 2010 in Washington recently. Many from Europe failed to make it thanks to the volcano. They, and anyone else interested in this topic (judging by Monique’s blog hits, a great many people) ought to look at her blog which, as I write, includes near the top several video interviews with people who are knowledgeable in this area. Read the rest of this entry »


Ofsted has shown us WHY we should collect data properly and now lawyers must find out HOW

April 9, 2010

We do not yet know if Ofsted’s failure to give proper disclosure in the Shoesmith litigation was the result of cock-up or conspiracy – I am hedging my bets and assuming both that Ofsted fouled it up and that the government interfered to spin the story they needed. What matters is that the world now has a very public example of why a proper collection of documents is necessary. The next step is to explain how to get it done. A new video about EnCase Portable helps to get the message across.

As you may have gathered, I am resistant to the use of words like “revolutionary” when applied to products in the litigation support market. Most of the best products are, in fact, simply the latest iteration of a tried and tested product whose new features represent quiet and steady evolution rather than anything as exciting as a “revolution”. From my own years of selling software, I know that anything which suggests revolutionary change tends to alarm rather than excite, particularly if the audience includes lawyers. Revolution makes them think of tumbrils or Bolsheviks and the loss of an exclusive authority as power passes overnight to the masses – not the sort of thing lawyers go for at all.

What about the situation, however, where they are the masses and there is an opportunity for them to take power from a yet more exclusive group? I was talking along these lines to a couple of lawyers from a go-ahead regional firm a few days ago. I have come across them at various e-Disclosure-related functions, and they are a model for the kind of firm which is in a position to win work either by taking it away from other firms or by creating new areas of expertise in-house. The immediate context was the urgent collection of data, and I suggested that every firm ought to have a copy of Guidance Software’s EnCase Portable and the in-house skill to use it. I made it clear that I was not advocating that firms of any size should routinely handle all their own data collections, but that there are often circumstances when the ability to collect modest amounts of data – perhaps from a client’s laptop there and then – could save much time and expense and, indeed, could save a case in some circumstances. Read the rest of this entry »


Germany focuses on data protection and privacy

April 1, 2010

Americans may be tempted to think of EU data protection and privacy laws as being an obstacle deliberately placed in the way of conscientious US lawyers who are merely trying to do their job. That reaction is unsurprising, since that is the context in which they come across a set of laws which are remote from their domestic experience. It may help if I point you to four recent articles about Germany, only one of which has a direct connection with electronic discovery. The others may serve to provide a context. Read the rest of this entry »


A week of positive opportunities in e-Disclosure

March 27, 2010

There are two reasons for running a week’s worth of reports and comments into a single article. The least meritorious of them is that I will not keep up with it all if I do not do a composite post. More positively, that is because a lot has been happening and I can better convey the sense of that in a single article. The overall message is one of positive steps forward, not merely defensiveness.

The previous week ended with a session run jointly with Andrew Haslam of Allvision at a medium-sized firm with a strong regional base and a London office. It is exactly the sort of firm which I have written about as holding the key to the future, at least in my own narrow ambit – agile, versatile, staffed with lawyers trained at the big city firms, and hungry for quality litigation work. It is the sort of firm which, if it makes alliances with the right providers of litigation services and invests in the skills, could take on much bigger firms at a cost lower than theirs, partly because their costs and charging rates are lower and partly because of the way they run their litigation. I will spend any amount of time with firms like this, because they get it, and could change client perceptions about how litigation should be managed.

I covered the background — the framework of rules and cases, the implications of the Jackson Report, and where we stand with the proposed new practice direction and ESI Questionnaire. Andrew Haslam spoke about the technology which is available and what a firm needs to have in place as processes and connections to be able to run with anything which comes along. In the pub afterwards, one of the solicitors told me frankly that he had come to the session expecting to be unconvinced but, having heard us on the subject of the ESI Questionnaire, intended to send it to his opponents in a particular case first thing on Monday morning. A result, I think. Read the rest of this entry »


Gucci v Curveal: a blow for US interests – whichever way you understand that expression

March 26, 2010

British 19th Century “gunboat diplomacy” and the song The Wreck of the Old 97 are what came to mind when I read the latest Opinion of a US court about the relative importance of US interests and the laws of other countries restricting the discovery of private information. Carry on like this, USA, and you may well need a gunboat to support document collections.

The article by the respected US e-Discovery commentator Tom O’Connor Why the Rest of the World Thinks we are Crazy concerns an Opinion of the District Court of the Southern District of New York which orders a Malaysian bank, not party to the proceedings, to produce documents despite a Malaysian statute prohibiting them from doing so. I volunteer to speak on the half of “the Rest of the World” Read the rest of this entry »


Talking rather than writing – normal service will be resumed soon

March 24, 2010

The relative silence on these pages recently does not imply that I have run out of things to say (sorry about that) merely that I have had a good run of being out and about, or making plans for future events here and abroad. All good, all interesting, and all indicative of a rise in interest in e-Disclosure / e-Discovery amongst those who need to know about it, but not consistent with much considered writing.

Gucci America v Curveal has not passed unnoticed, and there is an article coming up which invokes 19th Century British gun-boat diplomacy and The Wreck of the Old 97 as parallels for the US approach to trifles like the laws of other countries. Another article, consistent with my current theme about objectives being more important than processes, shows how a PR agency can be 100% successful in getting its client’s name out there, whilst making it deeply hated – the SEO is great, chaps, but the effect is wholly negative.

All this and more when I get back from the third in my sequence of post-Jackson talks in London. Tomorrow’s one is to ALPS, the Association of Litigation Professional Support Professionals, in company with Vince Neicho of Allen & Overy – an important and knowledgeable audience. There is one more after that, on Thursday, at which I am listening rather than speaking, and then I am back at my desk for a bit and can catch up.

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Cloud Computing: Privacy, Disclosure and Discovery Considerations

March 10, 2010

There is a free webinar on 11 March callled Privacy, Disclosure and Discovery Considerations stemming from Cloud Computing. It is put on by Wave University and CT Summation and the speakers are Dan Regard of iDiscovery Solutions, Inc., eDiscovery Specialist Reza Alexander and Joseph Baker of Mayer Brown in Washington.

Wave University is an educational platform for legal professionals offering free webinars, ‘lunch and learn’ series and software training webinars.  Any US-based discussion about privacy needs an EU perspective and Reza Alexander, who was until recently the Litigation & Practice Support Manager for DLA Piper UK, will bring an authoritative viewpoint.

The webinar is at 10:00 – 11:00 Pacific Time, 1:00-2:00 Eastern Time, 18:00-19:00 GMT tomorrow 11 March 2010.

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Spring Offensive in the eDisclosure War

March 8, 2010

It feels suddenly as if a new phase is opening up in the war to tackle the wasted costs of e-disclosure. If the Rule Committee’s recent failure to grasp the nettle seemed a rebuff, there is a new Spring Offensive coming. A busy week moved us forward on several fronts.

I would have been content for the week with the signing of a new sponsor (Nuix) and the publication of Senior Master Whitaker’s judgment in Goodale V MoJ which, as I said in my article on it Goodale v MoJ – a template judgment for active management of eDisclosure, is as important as a model for e-Disclosure case management as for the fact that our ESI questionnaire is annexed to it and thus made public. There has been more than that, however. Read the rest of this entry »


The Readership of the e-Disclosure Information Project

March 3, 2010

I have just been asked to give some statistics for readership of my blog and, having done the research, I might as well summarise it here. It happened to be quite a good day to ask – there were 436 page views that day (Monday), my second-highest daily hit rate, and 432 today.

Although I am obviously interested in knowing how many people take the trouble to read what I write, mere numbers are not a particular ambition. I am more interested in being thought of as authoritative and interesting to those who actually want to know about the subject, not to attract numbers for their own sake. My aim is to make sure that anyone who is interested in the subject of e-Disclosure / eDiscovery will come across my sites either directly or by reference from elsewhere. I am perfectly happy with 5,000 to 7,000 page views per month on a narrow subject, but it is not what I “sell”. I value the anecdotal evidence that people notice what I write ahead of the bare statistics.

Let us take the actual statistics first. The graph below shows page views since August 2007. They settled at around the 5,000 mark in September, October and November 2009; numbers were down, inevitably, for December (the same is true of the summer holidays) and then shot up to over 7000 in January and a little less in February. Read the rest of this entry »


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