A representative selection of sessions at the IQPC London Information Governance and eDisclosure Summit

I avoid lists, on the whole. Apart from the fact that one can sense the readers bleeding away, there is always the risk of omitting somebody or something, or of appearing to give an unintended priority to one thing rather than another.

Big conferences raise particular issues. There is no point in itemising every event – I might as well simply refer you to the published agenda. Perhaps I should refer only to those panels in which I am personally involved, but that seems a trifle egocentric.  I might limit the selection to those companies with whom I have a personal or business connection, but that potentially omits reference to a major player on a significant subject. Is my role simply to promote those who are good enough to sponsor what I do, or does that undermine the objectivity which is, I hope, what keeps the readership and the Twitter followers rising?

Looking through the programme for IQPC’s Information Governance and eDisclosure Summit, taking place in London this week, I can reconcile these various conflicts by reliance on the fact that the sponsors of the eDisclosure Information Project are representative of the broader range of providers, and that the subjects which they cover give a correspondingly representative picture of what matters in a UK-centric picture of electronic disclosure.

DOJ eDiscovery Director speaking in London this week

Amongst the many interesting contributors to the IQPC Information Governance and eDisclosure Summit taking place in London from 14 to 16 May is Allison Stanton, Director of eDiscovery, FOIA and Records for the Civil Division of the US Department of Justice. She is taking part in a keynote panel about regulatory obligations, enforcement priorities and expectations along with Dean Gonsowski of Recommind and Keith Foggon of the Financial Conduct Authority (I don’t usually link to the web sites of government agencies, but this one is new and you might want to see what they do).

Allison Stanton is a reason on her own for attending this event, far and away the most interesting and lucid speaker on this subject from any regulator. She has been interviewed by Metropolitan Corporate Counsel, something I missed when it was published in February. Here is a link to their article DOJ Director Talks About Investigations and eDiscovery Technology.

The most interesting section in the interview is the one about costs, in which Allison Stanton makes it clear that whilst the DOJ’s primary driver is its “core mission to protect the American public”,  it is willing to listen to companies who are able to explain “in nuts-and-bolts terms” the costs and burdens which they anticipate in complying with a regulatory demand. One would not mistake anything she says as implying that the DOJ will compromise on its core mission, but the invitation is there to open discussions around cost and burden.

A packed agenda at the Information Governance and eDiscovery Strategy Exchange in San Diego

I wrote last September about the Information Governance and eDiscovery Strategy Exchange in Washington, commenting on the fact that an all-British team based in London had managed to run an extremely successful eDiscovery conference in the home of eDiscovery. The observation was not made out of national pride, or its reverse – I do not care who runs conferences as long as the content is good, the audiences come, and they give me plenty to do and a comfortable room. It was not intended, either, as implying any shortcomings in the other US conferences which I attend and enjoy. It just seemed remarkable that the Brits a) think of doing it at all and b) pull it off.

The same team has done it again, this time in San Diego, whence I have just returned. The content was even better than in Washington and the audience, if my anecdotal evidence is representative, felt they got good value from it. I certainly did. I was one of three chairmen – Christina Ayiotis of the George Washington University and Browning Marean of DLA Piper US were the others; I also moderated three sessions, one on metrics, one on in-sourcing and out-sourcing and the judicial panel, and took part in one on global data privacy regulations. I can’t complain at the variety.

How though, do you write up an event whose program was so packed with useful sessions? My first draft of this post said that I would not try, not least because the turnaround time between that event and the next one (to say nothing of the one after that) is too short to try and do justice to it all. When I finished dictating, I found that I had done it anyway, at least in summary form.

Huron Legal’s Nigel Murray rides again for Help for Heroes

I was in a US airport earlier this week (don’t ask me which – they all look the same after a while) and heard an announcement about facilities available for US service people – somewhere to sit and eat, with a place for children and other comforts. It was delivered in that rather sonorous tone which Americans use for everything from state funerals to insurance advertisements (think Sam the Eagle as voiced by Frank Oz), and ended with the words “We salute you”. That, coupled with things like preferential queuing arrangements for service people, reminded me that the US is more overtly appreciative than the British of those who come home. We demonstrate immense respect for those who die – my home county, Oxfordshire, is where the bodies are brought to, and hundreds turn out to greet them – but successive UK governments have not been good to those who have been wounded while fighting for their country.

Those who know Nigel Murray of Huron Legal (that is, almost anyone engaged in eDisclosure/eDiscovery) will know that he surprised us all some years ago by putting his less-than-sylph-like frame through a rigourous training routine as preparation for a long cycle ride in support of the charity Help for Heroes, whose mission is to support those who are injured in body or mind whilst on active service.

New Law Journal – Jackson articles by HHJ Simon Brown QC and Dominic Regan

The NLJ is publishing an excellent series of articles about the Jackson reforms. They now have another in the series of Costs Budgeting articles by HHJ Simon Brown QC, this one called Costs budgeting: Proportionality is trumps. The index to the whole series is here.

Meanwhile, an article called Dominic Regan reflects on the reform of disclosure (again) brings further thoughts from Professor Dominic Regan on the costs of eDisclosure as they are now to be managed by the court.

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US eDiscovery articles in brief

Consistent with my condensing approach to current events, I give a brief summary of some of the US articles which have ended up in my Evernote store while my attention has been on the roll-out of the Jackson reforms. Rule changes and predictive coding remain at the top of the agenda. The best service I can do is simply to point to some of them.

Judge Peck’s refusal to recuse in Da Silva Moore remains after appeal

The title of this LTN article, Judge Peck’s Refusal to Recuse in ‘Da Silva Moore’ Remains After Appeal says all you need to know. A crisp opinion from the US Court of Appeals finally disposes of the recusal sideshow to the predictive coding sideshow, leaving the parties free at last to focus on the merits of the case. The LTN article helpfully includes links to some of the articles which told the story as it unfolded.

How good is your predictive coding poker face?

A two-part article by Matthew Nelson of Symantec introduces segments of video in which Maura Grossman, Craig Ball, Ralph Losey and Matthew Nelson discuss various aspects of the use of predictive coding by reference to a poker game. The articles are called How Good is Your Predictive Coding Poker Face? Part One and Part Two. These are authoritative speakers and this is an interesting way of serving up some of the issues and recommending approaches to them.

Technology assisted review: unlocking the black box

A helpful article by Randall Burrows of Xerox Litigation Services is headed The next step for technology assisted review: unlocking the black box. Its subtitle, A step-by-step approach to establishing a more defensible methodology, is fulfilled by a straightforward guide to the support which a lawyer can bring to bear on the validation of his or her approach to the use of technology assisted review and, by implication, to challenging the approach taken by opponents.

An optimistic article about eDisclosure post-Jackson – and a less sanguine one

Georgina Squire of the London Litigation Solicitors Association has written a concise and practical guide to eDisclosure under the new rules, which has been published in the New Law Journal. It is called A brighter future? (not the first, I think, with that title on this subject, but the message is an important one) and it emphasises the need for early attention to scope, for discussions aimed at narrowing the arguments, and for focus on what really matters.

I don’t agree with all of it – the sentence The new disclosure rules are a significant departure from the previous approach of “leaving no stone unturned” ignores the fact that that expression comes from two cases (Digicel v Cable & Wireless citing Nichia v Argos) in which looking under every stone was expressly disapproved of. The new rules are not a “significant departure” from that approach but a reinforcement of it.

That apart, this is a good article, worth reading by those who are facing their first CMC since the rules came in.

Meanwhile, Richard Harrison of Laytons, one of the more thoughtful of the litigation lawyers who actually have to do this stuff, has set down his view of Precedent H and the context in which it is to be used. His article, on the SCL website, is called Cost Management and Budgeting: the Absurdities of Precedent H and has as its opening sub-heading The need for scepticism.

UK judges and predictive coding – open to any proportionate suggestion

Charles Christian’s Legal IT Insider has been hosting a discussion about the likely reaction of case managing judges to the proposed use of technology like predictive coding. The starting point is a thoughtful article by Drew Lewis, eDiscovery Counsel of Recommind called Best case scenario – the impact of the Jackson reforms, and Andrew Haslam, Jonathan Maas of Ernst & Young and I have joined in with comments.

However close becomes the alignment of the procedural rules in the US and in England and Wales, I suspect that we in the UK will never really get our heads round the US idea that one needs judicial blessing (from some court, somewhere) before doing anything new or different. We are not talking here of formal precedent, but of day-to-day case management of the kind which is rarely reported in England and Wales anyway.

The problem with phrases like “courts in the UK are currently not open to predictive coding”, apart from being wrong, is that they have the potential to stifle imaginative approaches to bringing costs within the bounds of proportionality. The courts are “open” to any suggestion which achieves this and one must jump on any assertion which might become a self-fulfilling prophecy.

The new rules are to some extent a clean sheet, and give opportunity for the right kind of lawyer and the right kind of judge to set the tone. The 1999 case management rules provided that the court could “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”. If the court can make any order, you can seek any order; if your suggestions point to the most proportionate approach of managing the case, then the court will not be inhibited by the absence of a case report approving of the method.

It is worth drawing attention to the point made by Jonathan Maas – your enthusiasm for agreeing timescales, as well as budgets, is no substitute for knowing what you are talking about. Vince Neicho of Allen & Overy emphasised at Epiq’s recent costs seminar that it is necessary for all interested parties (in the wider sense of the word “interested”, and including the client) to be involved in the discussions which go through into court-approved timetables.

On the same subject, The Lawyer has published an article by Jim Kent of Nuix called Is predictive coding the answer to reducing the costs of eDisclosure? which takes you through the practical steps in using this kind of technology in a manner relevant to UK proceedings.

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Cost budget revisions unlikely

I have already referred  (in my article on Epiq’s costs seminar) to Murray & Anor v Neil Dowlman Architecture. There is a good commentary on that on Outlaw.com called Cost budget revisions to fix mistakes unlikely to be allowed, says judge which you may find helpful.

I have mentioned also Dominic Regan’s article The end of late chopping and changing on the same subject.

Distinguish between amending a budget because the facts have changed and getting the budget wrong in the first place.

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Good Practice Guide to eDiscovery in Ireland

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

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

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

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

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CPR, CMC, WTF …. and OCD: eDiscovery stories keep rolling in

I have a stream of short articles coming. This is just some background noise.

I observed in a tweet last week that I had overlooked the Twitter presence of an interesting legal software development company, Neota Logic. “Might be because you are OCD about eDiscovery” came the prompt response.  Although I immediately admitted the charge (or “accepted the compliment”), eDiscovery / eDisclosure is how I earn my living and one need not be obsessive, compulsive or disordered if there is a happy coincidence between the things which interest you and the things which put bread on the table. I call it good fortune myself.

The OCD suggestion gives us another set of initials to add to those nicely caught by this Times law cartoon.

The genius, as well as the authorship, of these cartoons is hereby acknowledged. You can find more here.

There has been quite a lot of it about recently; a high volume of mainstream eDiscovery stuff as well as other aspects of legal practice and justice has given me a long list of things to write about. I have three weeks of conferences coming up, with two in the US bracketing one in London, and it would be good to be shot of some of it before that begins.

A series of relatively short posts follows this one. With that done, I can turn to the the conference preparations and other things which comprise the rest of the pile in front of me.

Jackson – the phoney war

First, however, what has been keeping me busy? Directly or indirectly, the answer to that is “Jackson”. Despite 18 months of thinking time, those responsible for launching the new rules managed to make a complete hash of it. This is not necessarily the fault of the rank and file members of the Rule Committee whose work we are lucky to have (and I don’t say that just because I was at school with one of them and am on friendly terms with another). They were set a near-impossible task by the decision to amalgamate all the changes into one amending act – one can see the tidiness of this in statutory terms, and one can see also that some elements depend on others, but it does impose an immense burden on those charged with the drafting, to say nothing of weight on those who implement and those who must obey the rules.

It was unfortunate that the launch of the rules coincided with other developments which have nothing to do with them, including a brutal attack on Legal Aid and a mindless hacking at the front-line staff in the court and at the Ministry of Justice budgets generally.

Epiq Systems seminar focuses on the new Costs Management rules

Epiq Systems held an extremely informative seminar on the new costs regime earlier this week. You will find at the end of this post a link to the video made on the day with the strong recommendation that you watch it.

“The thing about Dominic Regan”, somebody once said to me, “is that nearly everything comes down to costs to him”. It was meant as a compliment, and reflected the fact that much of the Civil Procedure Rules, of the case law which exists around it, and of the strategy of litigation, runs sooner or later into questions of costs. There are, of course, litigants for whom expense is no issue, cases which must be fought at any price, and large sections of the rules which regulate aspects of procedure to which costs have no direct relevance. The justice which is set squarely in the opening section of the overriding objective, however, is no justice at all if parties cannot afford it;  Lord Justice Jackson’s remit, however widely drawn, was driven by the need to control costs, and the rule changes which are named after him largely reflect that.

Professor Dominic Regan was one of four expert panellists at a seminar organised by technology provider Epiq Systems in London this week. The others were Master Colin Campbell of the Senior Courts Costs Office, costs expert Michael Bacon and Allen & Overy litigation support manager Vince Neicho.  The room was packed, and if much of the focus was on eDisclosure, the panel ranged across the wider implications of the new costs regime. The session was led by Epiq’s Saida Joseph.

Discussing eDisclosure round the table at the Brewery

The fact that we enjoyed ourselves at the TGCI eDisclosure event in London did not make it any less of a serious forum for discussion. The round-table format, the complete absence of PowerPoint slides, and the invitation to delegates to interrupt as they wished made it an extremely lively and useful exercise.

There are a limited number of ways in which you can organise conferences and seminars aimed at dispensing information and promoting discussion about eDisclosure / eDiscovery. The conventional approach, a series of lectures and panels delivered from a podium or platform to delegates in rows of chairs, is ideal in many ways, particularly when the intention is dispensing information from the few to the many – that is what delegates generally expect, and I am told by someone who organises events across many different sectors that lawyers are not particularly interested in alternative formats – even government delegates look for more imaginative approaches.

I am not being critical here – I have no quarrel with the conventional approach and am rarely an enthusiastic participant in those events where you are divided into tables and given a whiteboard, a set of scenarios and some poor sap who must report back to the conference.  One approach I do like, which we are seeing more often, is the “led discussion” where we get down from our platforms, pull our seats into a circle and talk around a subject at the behest of a nominated group leader.

Jackson events next week with Epiq and Consilio and guides from Judge Brown, Dominic Regan and Kerry Underwood

A tweet last week compared the first few days of the new case and costs management regime with 1939 – the reference was not intended to evoke anything belligerent but that period of uneasy calm known as the Phoney War which followed the formal declarations. We all know that something momentous is happening to those involved in civil proceedings, but until we start getting reports of case management conferences and feedback from the front line (to continue the war analogy) we cannot really tell how it will all play out at a practical level.

For the most part, I have stuck to straightforward recitals of what the rules say, reckoning that the MoJ’s botched launch of the amendments has so obscured the position that people are grateful simply to be pointed to the key provisions – as another tweet said, the MoJ was going to celebrate with a party at a brewery, but could not find anyone to organise it. At a conference this week, I offered delegates the choice between a summary of what the rules say and an analysis of their implications; they went for the summary, leaving it to Senior Master Whitaker to delve more deeply into what the changes mean for practitioners and clients at a later session.

It is worth pointing you to some of the events and articles which get more deeply into the implications.

Events from Epiq Systems and Consilio

I have already written about a seminar which Epiq Systems is running on Tuesday 23 April at 8:30am at 60 Cannon Street. Its title is Costs changes to the Civil Procedure Rules: join the debate, and the speakers are Master Colin Campbell, Senior Costs Judge, Michael Bacon, costs lawyer, Vince Neicho, Litigation Support Manager, Allen & Overy and Professor Dominic Regan, adviser to Lord Justice Jackson on costs budgeting. The focus is on the pre-estimates of eDisclosure costs which are required whether or not costs management has been ordered (an important point this, for those confused by the cost management exemptions), on keeping costs down by the use of technology and outsourced review, and on the crossover between the new costs regime and clients’ demands for more imaginative costs structures – the predictability and transparency required by the courts is, of course, much the same as  a client wants from its lawyers anyway. Registration for this event is here.

On Wednesday 24 April  Consilio is producing a webinar called The eDisclosure Shakeup: CPR 31.5 with Marla Bergman of Goldman Sachs, Garry Bernstein of Consilio and me. As I have written here, the focus is on the value of metrics in approaching costs estimates – if you  keep information about past cases (or work with someone who does) then the apparently daunting task of estimating costs so early in the proceedings becomes more feasible. No one (not me, anyway) is saying that it is easy, and many cases will buck all known trends; nevertheless, there is commonality in the components of cases which, if captured, can the used to inform future decisions. Registration for this event is here.

Nuix and the Global Offshore Money Maze – tools and skills go beyond conventional eDiscovery

Whilst this story has Nuix software as its inspiration, the point is a wider one – where do you start when you don’t know where to start on a large collection of data? A combination of software and shoe leather may be needed. And the software and skills may open doors to new practice areas.

I have been focusing on the impact of the Jackson reforms in England and Wales, but the big eDiscovery story of the month has involved a rather different application of a discovery tools and techniques.  The focus on court rules and on technology and processes can easily blind us to the importance of data as evidence. Evidence matters (or should matter) as much to investigative journalists as it does to lawyers, and the same technology can be used by both.

The International Consortium of Investigative Journalists (ICIJ) was given anonymously a hard drive containing 260 GB of data including more than 2 million e-mails, as well as Word documents, databases and spreadsheets – as broad a mix of source types as one will find anywhere.  Many eDiscovery exercises begin with the question “What have we got here?” -  an important point, often overlooked by those who ask simplistically “Why are we don’t just use Google for eDiscovery search”. You need something rather different to investigate this kind of volume of mixed data when you have no idea what it is all about.

The ICIJ turned to Nuix, who provided software licences free of charge to enable investigation of the data. That turned out to include the biggest collection of leaked data in the history of journalism, all relating to financial arrangements of the kind which the rich and powerful use to keep their assets and transactions hidden from view. Government officials, wealthy corporations and individuals, banks and offshore tax advisers all featured, and much more prominently than they would hope.

You can read about it in an article by Nuix CEO Eddie Sheehy called Nuix the Obvious Choice for ICIJ “Global Offshore Money Maze” Investigation which includes a graphical display of the complex webs of interaction which the Nuix software flushed out.  You might also be interested in an article called Aussie Software Ferrets Out Hidden Money. The ICIJ’s own telling of the story is called Secret Files Expose Offshore’s Global Impact.

The Ghost of Legal Services Yet to Come – a Futurist tells of things that may be

LegalTech Asia Technology Summit opened in Hong Kong with a thought-provoking keynote from futurist Rohit Talwar. Don’t be put off by that “futurist`” label – UK solicitors (and even barristers) get something to think about from talks like this. I pick out the themes and points which are relevant to lawyers now. The Scrooge parallel, I should stress, is mine not Rohit Talwar’s.

“Before I draw nearer to that stone to which you point,” said Scrooge, “answer me one question. Are these the shadows of the things that will be, or are they shadows of things that may be, only?”

Still the Ghost pointed downward to the grave by which it stood.

“Men’s courses will foreshadow certain ends, to which, if persevered in, they must lead,” said Scrooge. “But if the courses be departed from, the ends will change. Say it is thus with what you show me!”

Scrooge’s story is, as we know, one of redemption, and futurist Rohit Talwar, keynote speaker at LegalTech Asia Technology Summit in Hong Kong at the beginning of March, was rather too jolly to make an authentic Ghost of Christmas Yet to Come. Nevertheless, his message might well make lawyers think of the grave which persuades Scrooge to change his ways or, more positively, think of ways to modify their practices to meet a changing future.

“We have got to see past the current turmoil or lock ourselves into our history”, he said, and his reference to “current turmoil” related as much to the daily rushing around with what is on our desks as to the wider economic scene.

“These futurists are all very interesting, but I want to know what my firm should do now”. This is the common cry of those who attend talks by those who anticipate business trends. I do not particularly like the label “futurist” because it somehow implies too much science and not enough flesh and blood, but that is how Rohit Talwar describes himself, and there was certainly more than enough of the human in his talk. I occasionally meet an equivalent perception myself – because I live in Oxford and have a grey beard, it is somehow assumed that I am “academic”, and “academic” carries the implicit connotation of  separation from the real world. My focus is in fact very much on commercial futures.  What Rohit Talwar has to say, as with Richard Susskind, has implications for law firms now.

Rohit Talwar packed a lot into his 90 minutes. I must be selective in what I report, sticking to those things which have obvious relevance to eDiscovery and to the business processes needed, both by law firms and by their clients, to elevate eDiscovery beyond being a plod through the rules or (which is just as bad) being a mechanical set of tasks with little apparent relevance either to evidence and law or to business objectives.

Send three and fourpence, going to a dance – muddled messages from the MoJ

It is fitting that an article about confused messages should have to start with an explanation of its title. Only those who are old and British will know that pre-decimalisation currency consisted of pounds, shillings and pence, written as £. s. d. “Three and fourpence” was three shillings and four pence (written as 3/4) and was equivalent to about 17p in new money.

The (possibly apocryphal) story goes that a Great War front line commander sent a message back from the trenches “Send reinforcements, going to advance” which reached HQ as “Send three and fourpence, going to a dance”. It comes to mind as we watch the UK Ministry of Justice, and those responsible for the mechanics of rule-making, convert Sir Rupert Jackson’s crisp and urgent message about case management and costs control into a confused jumble. The front-line troops are the case managing judges and the lawyers who are trying to work out what they are supposed to be doing to comply with a regime whose implications, they know, include fierce enforcement provisions. At the time of writing, the enforcement provisions in Rule 3.9 have (just) been published, but the new eDisclosure rules have not. You can therefore, theoretically at least, be punished for non-compliance with rules which you cannot easily find.

The Jackson reforms have attracted a great deal of comment, much of it from people who know what they are talking about in their various specialist subjects; we have also heard a lot from people who are less knowledgeable, from some who conflate a range of changes (including those to Legal Aid) under the label “Jackson”, and from some whose position is like that of the early 20th Century judge who said “Reform! Don’t we have problems enough already?”.

A clear message from the Master of the Rolls about CPR enforcement

You might perhaps be forgiven for thinking that the case management parts of the Civil Procedure amendments won’t really affect you. It is not just that their launch has been confused, to use a charitable term; those who came through the 1999 launch of the CPR found the courts willing to accept excuses for non-compliance thanks to a (largely unspoken) idea that the interests of justice required leniency in the face of “mere” procedural defects.

This is one of the points addressed by Lord Dyson, Master of the Rolls, in a speech delivered on 22 March to the District Judges Annual Seminar.  The amendments, it is clear, do more than introduce specific procedural requirements; the change of culture from the post-1999 world – “the new philosophy” he calls it – which was the focus of the MR’s speech lies in this sentence:

“Tough rules but lax application; tough rules but a culture of toleration; and lax application and toleration are all fatal to the new philosophy”.

What Lord Dyson calls the “Mark II overriding objective” includes an express reference to “proportionate cost”. Proportionality has, in theory at least, underpinned the rules since 1999. In the context of disclosure, the narrow definition of a disclosable document, the restraints on the duty of search, and the reminder, in two important cases, that parties are not required to look under every stone, are all part of this. It is equally the case that the existing rules expect compliance, yet we now have a new Rule 3.9 which addresses (and not in a good way, some would say) relief from “any sanction imposed for a failure to comply with any rule, practice direction or court order”.

Comfortable apathy for anyone? Some Jackson case management and costs management commentary

I am working on some material to add to the Resources section of my web site about the case management and costs management aspects of Jackson. There is, as you would expect, a great deal of comment flying around at the moment and I take this opportunity to point you to some of them.

LexisNexis has just published a sub-site devoted to the subject called LexisNexis on Jackson.  In addition to providing links to the main formal documents (as I did recently) it carries four videos designed to show what happens when you fail to prepare for or cooperate with the other side in relation to cost budgeting before the CMC.

The participants are HHJ Simon Brown QC, who did so much on the Birmingham costs pilot, and two solicitors who took part in the pilot, Mark Surguy of Eversheds and Martino Giaquinto of Mills & Reeve. This is an excellent and easily-assimilated way of understanding the implications of the new regime, and an extremely useful supplement to reading the rules themselves (don’t forget to do that).

An article published today in the Law Society Gazette is headed Judges “ill-prepared” for Jackson and presents a pessimistic view of what parties can expect given the paucity of the training given to case managing judges. I take a rather different view.

Small and medium-sized cases have electronic documents too

Three articles come my way at once, connected by the theme that electronic documents raise management issues in small and medium-size cases and not only in the large ones which tend to hog the limelight. One of the articles comes from the UK and the other two from the US; the principles apply everywhere.

Bringing Babel to the lawyers

The UK article is from Charles Holloway at Millnet and is called Nimrod. The chap allegedly responsible for commissioning the Tower of Babel could serve as the introduction to several eDisclosure / eDiscovery parallels. Charles Holloway refers, subliminally at least, to two of them. One is the launch of the new civil procedure rules, where the clear message intended by Lord Justice Jackson has been undermined by a confused delivery which resembles a site instruction at Babel: we have costs management, heavily qualified by ad hoc exemptions yet still promoted as the default -  picture a Greek writing instructions in Babylonian for the benefit of a Latin-speaking project manager to pass on to a Hebrew workforce in Gaelic and you can easily see the relevance of Babel to the rule makers.

We don’t need Babylonian, Latin, Hebrew, Gaelic and the rest to confuse the UK eDisclosure landscape, because we have American. Much of the marketing style, as well as the language, comes direct from the US, and it needs more than a dictionary to convert US eDiscovery concepts into terms which matter to the lawyers who are the potential buyers of eDiscovery software and solutions in the UK. I have done my bit over the years to reduce the language of fear and scale which characterises US eDiscovery marketing, full of talk of terabytes, sanctions, legal holds, requests, privilege logs and all those other things which make US discovery so disproportionately expensive. You cannot wholly blame the marketing people, whose language reflects the reality of the problem they are attempting to solve – in the US.

Another legislative shambles as Britain steps towards state control of the press – and the web

I have been leafing through my copy of Roget’s Thesaurus in search of a synonym for “shambles” – I have used that word rather a lot recently in connection with the publication (and immediate amendment) of the Civil Procedure (Amendment) Act 2013, and it would be good to find a different word for the shabby political deal which resulted in agreement in the middle of Sunday night on state regulation of the press and, as now appears, of pretty well anyone who comments on current affairs. (But probably not – see articles linked to from my post scriptum last paragraph).

If I am not yet sure what it means, I am not alone. Its targets are those who:

(a) make broadcasts…

(b) publish, for circulation anywhere in England or Wales, a newspaper, magazine or periodical (or online content associated with a newspaper, magazine or periodical), a substantial proportion of which consists of news of, or opinion and discussion about, current affairs;

(c) in the course of a business, publish content on a website, a substantial proportion of which consists of news of, or opinion and discussion about, current affairs in England and Wales.

The upshot, whatever its proponents say, is a statute-backed regulator of press comment.  It resulted from a political deal in which David Cameron was effectively outflanked by Ed Miliband, whose prime driver seems to have been putting one over on Cameron rather than any conviction. Nick Clegg’s conduct reminded us of the cartoon which appeared at the time when the coalition was being stitched together – a door bearing a notice reading “Knock three times and ask for Nikki” as he offered himself to the highest bidder.

Challenges to meet and not just threats in the Jackson reforms

A senior clinical negligence barrister suggests that we think positively about the Jackson reforms.

Shortly after the UK Bribery Act passed into law, I took part in a London panel about its implications. At the Q&A session at the end, a solicitor launched into a diatribe about the Act which I interrupted rather roughly. The time for consultation had passed, I said, and the Act had passed into law; there was no point in whining about it or suggesting that things might have been done differently; the object of the panel and its Q&A session was to focus on how to deal with it.

An article by clinical negligence barrister Nigel Poole QC makes similar points about the Jackson reforms and, indeed, draws attention to potential benefits from the changes. His article is headed Singapore Spring – Clinical Negligence Litigation after 1 April 2013, but it has interest beyond that specific area of practice. The Singapore reference is to Lord Justice Jackson’s enthusiasm for the case management regime in that jurisdiction. There had been much grumbling, Jackson said, when the new rules started to bite, but lawyers had come not merely to accept them but to find more work as litigation became more efficient and affordable. Nigel Poole summarises this with the sentence “if the courts give lawyers and experts the hurry up, that might just be good for clients.”

The definitive version of the CPR amendments – definitive for this week anyway

The launch of the Amendments to the Civil Procedure Rules has been a shambles, and court users can be forgiven for confusion. We needed decisive leadership at this point, something consistent with the attitude which case managing judges are now supposed to be taking towards those who do not follow the rules. If the execution matches the launch, then we have months of chaos ahead of us. This is not what Lord Justice Jackson intended, and it almost certainly would not have happened if he had not been taken off the scene by illness.

We now have the latest formal amendments to the amendments to the rules, so let’s catch them before they are in turn amended. My focus, here as everywhere else, is on case management as it applies to electronic disclosure and as to the costs estimates which have survived the successful bid for exemptions from the intended new costs management regime (I think perhaps the judges who rebelled against cost management overlooked the quite separate requirement for eDisclosure estimates).

The formal rules and practice directions relevant to case management and eDisclosure are given below, both the current ones and the amendments. Until 1 April, the Rules in force are the 59th Update. Be aware at that the time of writing, CPR internal links to PDs 31A and 31B are to old versions (that is, they have “old” in their urls). The links below are to versions not marked “old”, which I found via Google (as one does). I have not proof-read the one against the other; neither would yet reflect any 1 April updates.

This index is solely to material on the Ministry of Justice site. More follows.

General Counsel Institute eDisclosure Conference in London 17-18 April

I am one of four chairmen at a conference run by Today’s General Counsel Institute and called eDisclosure for the Corporate Market “The Exchange”. The others are Browning Marean  of DLA Piper US, George Socha of EDRM fame and David Kessler, an eDiscovery partner at Fulbright & Jaworski.

The event is aimed at corporate counsel and their staff, and its format is rather different from most such conferences. With a few exceptions, instead of platform talks and panels, we have round-table discussions led by moderators with eDisclosure experience in law firms, companies and providers as well as the judiciary in the form of Senior Master Whitaker.

The list of Moderators is here and here is the Agenda.

The format is one which has been very well received in the US, focusing less on didactic pronouncements and more on client objectives. Regular readers of this site will be aware that, whilst I do not downplay the burdens and risks of electronic disclosure, I am more interested in how one can use the rules for positive reasons and on the increasing overlap between the courts’ objectives and those of the clients.

My interview with Richard Susskind – Tomorrow’s Lawyers and eDisclosure

Professor Richard Susskind is the keynote speaker at the Information Governance and eDisclosure Summit taking place in London on 14-16 May 2013. His new book, Tomorrow’s Lawyers, has just been published, summarising in 160 very readable pages Richard Susskind’s picture of the legal world as it will be, not just in the foreseeable future, but very soon.

Writing about it recently, I said:

[Susskind's] broader predictions, effectively signalling the end of the traditional law firm model, have always seemed reliable but distant, something on the horizon which lawyers might hope not to reach before retirement. My sense on finishing Tomorrow’s Lawyers is that we can now see the waves crashing on the rocks. We have reached the horizon.

IQPC invited me to interview Richard Susskind as part of the background material to their May summit. The resulting podcast can be found here. It is as succinct a summary as you could want, both of the broader legal picture covered by the book and of the information governance and eDisclosure context of the summit.

The new case management rules, taking effect on 1 April, aim not merely to reduce the costs of litigation but to make them more transparent and predictable. The objective is not to be met merely by shaving a few Pounds off the hourly rate or by some vague commitment to greater efficiency. We need to work very differently and, in some cases, to question whether all of the work needs to be done at all.

What the court expects through the new rules in this regard is, and not entirely coincidentally, exactly what the clients expect from their lawyers. Will clients object to the up-front investigations about the scope, risks, benefits and costs of their prospective litigation, or will they see that project management, budgeting and progress reporting is exactly what they expect in any other part of commercial life? Will judges adapt to the new regime, which depends very much on their willingness to take up the burden of “active management” which the rules have long required of them anyway? Can litigation be both affordable to clients and profitable for the lawyers?

We touch on all these things in this interview and, as I said in closing it, I would have been happy to keep the discussion going for much longer than the 33 minutes which we allowed ourselves. I commend it to you and hope that we will see you at the London Lancaster Hotel at in May. The event registration page is here. If you want to know more about the podcast, contact Helen Winsor at IQPC.

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Links to eDiscovery content in the Legal IQ Resource Library

I wrote recently about Legal IQ’s Information Governance and eDiscovery Strategy Exchange taking place in San Diego between 5 and 7 May 2013. I referred in that article to the expanding and useful Resource Library which Legal IQ is building up and thought it might be helpful if I gathered together some of the items which are of particular interest to those who follow developments in eDiscovery / eDisclosure.

There are a lot to choose from and, if my primary selection of them which appears here is mainly of those in which I took part, that is unsurprising -  if I am asked to take part in an interview, it is probably because I am known to be interested in the subject-matter and there is (I very much hope) a reasonably close match between the things which  I write about and the things which you come here to read about.

In each of the interviews below – one audio recording and the rest on video – I am the one asking the questions and  a judge is giving the answers. Two of them are not interviews but are other resources worth your time. They all date from the end of last summer, but the issues remain topical ones.

Ireland’s Mr Justice Frank Clarke discusses the latest developments of judicial management and eDisclosure in the Courts of Ireland http://bit.ly/YFX9t

eDiscovery issues of our time privilege, preservation, proportionality: Presentation by the US Magistrate Judge Andrew Peck, Southern District of New York http://bit.ly/Z5TyoV

Interview with US Magistrate Judge James Francis, Southern District of New York,  discussing cross-border litigation and data privacy http://bit.ly/Vhk1Sx

Interview with US Magistrate Judge Andrew Peck on recent US developments http://bit.ly/148C90n

The Global Information Governance & eDiscovery eBook: Analysis priorities and key challenges facing the Information Governance & eDiscovery industry http://bit.ly/VSYNtd

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Jackson-empowered judges ready for the new regime – and its benefits as well as its burdens

An article by Rachel Rothwell in The Law Society Gazette shows that there are some judges who will be making good use of the case management powers given to them by Jackson, and reminds us that there are potential benefits as well as some fairly onerous duties ahead.

You may have observed that I have been less than complimentary about the introduction of the Civil Procedure (Amendments) Act 2013 which crawled onto the statute book a few days ago only to be amended immediately.

Having waited breathlessly for the definitive version and then rushed to produce a summary of it, I have now had to edit my post to reflect the changes, and have written an article, sarcastic even by my standards, about judicial reluctance to get involved in costs management.

Put succinctly, a judge who purports to impose proportionality without having some idea of the costs which are about to be incurred – it is the “about to be” bit which matters here – is looking at only half the story. Proportionality is like a seesaw in multiple dimensions – it has the objective (of clients as well as court) on one side and the costs on the other; it has quality and completeness on one side and costs on the other; it has risk (in the sense of oversight or omission) on one side and costs on the other. To abrogate responsibility for budgets seems to me to be a dereliction of duty.

Use of technology-assisted review and costs-shifting in US patent case has UK parallels

One of the main differences between the Federal Rules of Civil Procedure and the Civil Procedure Rules of England and Wales is that England and Wales is a costs-shifting jurisdiction by default. That means that the winner can expect to get a significant contribution to litigation costs from the loser. This, theoretically at least, acts as a brake on unnecessary expenditure because all parties have a contingent interest in the others’ costs.

Much of the focus of Lord Justice Jackson’s reforms has been on quantifying and controlling the recoverable costs – parties can spend what they like (as long as they do not run up unnecessary costs for opponents) but are limited in what they can recover if they win. Although the budgetary constraints envisaged by Lord Justice Jackson have been emasculated in part by judges reluctant to sully their hands with questions of costs, eDisclosure costs remain subject to tight control, with parties required to cooperate to limit the scope of disclosure, to agree the tools and techniques to be used and to estimate the costs of managing disclosure (see my recent article Costs management shambles defies parody but case management still has teeth on this).

The US has a more ambivalent approach to costs-shifting, with variations between states and a distinction drawn between lawyer fees and eDiscovery costs.  Judge Grimm suggested at Georgetown that we may see moves towards codification of the rules in a way which will put more parties at risk of having to pay their opponents’ costs, including (I assume) eDiscovery costs.

Free registration at LegalTech Asia Technology Summit

Anyone at a law firm can apply for a free delegate ticket to the LegalTech Asia Technology Summit, taking place in Hong Kong on March 4–5.  If you work in legal technology anywhere in the Asia-Pacific then you will want to be there.

The faculty list is here, and this is the agenda. Both are broadly-based, as one would expect from a joint ILTA and ALM venture, covering information management, data privacy, project management, emerging technologies and a wide range of other subjects of importance to those practising law in the region.

I am involved in two sessions. On Day One I am moderating a panel on data privacy laws with Scott Thiel, Foreign Regional Consultant for DLA Piper Hong Kong and Richard Williams of Deloitte, both of whom have extensive hands-on and practical experience of dealing with data privacy. My role, apart from making sure that we contain this enormous topic within 90 minutes, is to talk about the changing relationship between the US and other jurisdictions, including the EU as well as AsiaPac.

I am also involved in the first session on Day 2 on a panel whose title is Asia and eDiscovery – Unlocking the Mystery. My co-panellists are Jonathan Crompton of Dechert, Torsten Duwenhorst of Ernst & Young and Browning Marean of DLA Piper US. This is billed as a “Primer on the why, when and how of eDiscovery” and has the express intention of encouraging discussion with the participants on “their pain-points and curiosities”.

I wrote about Hong Kong in my article A Hong Kong eDiscovery snapshot in the company of Epiq Systems. Civil litigation suffers from what might politely be called “a growing lack of interest” on the part of Hong Kong judges. That is no impediment to eDiscovery growth in a region where arbitration and other forms of dispute resolution is growing and where different concepts of data privacy is a serious brake on trade, particularly with China. eDiscovery is more than a business process and legal in this context, but an important component in international business.

This is not just an eDiscovery show, as I have said. I am very much looking forward to being there on what, I suspect, will not be my only Asia-Pacific trip this year. As I said in opening, entry is free to those from law firms – register here.

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Information Governance and eDiscovery Strategy Exchange – San Diego in May

I have just booked my flight for Legal IQ’s 2013 Information Governance and eDiscovery Strategy Exchange, to be held in San Diego between 5 and 7 May 2013.  This is produced by the same UK-based team as ran the Washington Exchange last September which drew no fewer than three complimentary articles from me here, here and here – the latter drawing attention to a series of video clips in which the Washington participants, including sponsors, spoke very highly of the event which they had just attended.

You can see from the agenda for the May event and speaker list that no relevant subject is omitted, and that there is every sign that this event will be as good as the Washington one.

I am involved in three panels, all on subjects dear to my heart. The first is billed as a Fireside chat: Metrics and is a discussion between me and Marla Bergman, Vice President, Associate General Counsel, Legal and Regulatory Proceedings at Goldman Sachs. The idea for this originated from a panel which I moderated last year at which Marla Bergman described how she keeps metrics of every aspect of every case. That this gives her the ability to assess and control the budgets of future cases is reasonably obvious; what it adds, she says, is the tactical and strategic benefits vis-à-vis opponents and the court which come from being so obviously on top of the numbers.  If you want to argue about proportionality, you must do so from a position which clearly sets cost against benefit.

Costs management shambles defies parody but case management still has teeth

So, what is the overall effect of the implementation of the new Civil Procedure Rules in so far as they relate to case management, eDisclosure and budgets? Oh, I was hoping that you would tell me.

During last week, I started writing a parody, equating judicial reactions to dangerous modern concepts like budgetary control to the reaction of the peers, known as the “Backwoodsmen”, who showed no interest in the legislative process until Lloyd George threatened their very existence in the second General Election of 1910. At that point, they turned up at Westminster in their ancient tweeds, promising to “die in the last ditch” (thus their alternate name, the “Ditchers”) to defend the old ways. Tom Lehrer famously said that satire became obsolete when Henry Kissinger was awarded the Nobel peace prize. I now feel much the same about writing a parody about judicial reactions to modern commercial practices.

Someone yesterday said on Twitter that she had been embarrassed about her inability to understand it all until she realised that everyone else was similarly at a loss.

Put briefly, the long awaited Jackson reforms, whose outline has been known for nearly two years, did not go before Parliament until last week, when they were approved. They take effect on 1 April. One amendment had been agreed even before that approval, relating to costs incurred prior to the new regime. What emerged this week was evidence of a judicial rebellion resulting in agreement “on further reflection” to exempt the Chancery Division, the Technology and Construction Court and the Mercantile Courts from the strict budget obligations, an exemption which applied already to the Commercial Court and the Admiralty Court. It appears that their Lordships in the other divisions were worried that they might lose business to the exempt courts. The whole thing was rather reminiscent of the way in which one supermarket chain objects to the grant of planning permission to another on grounds which are dressed up as being objective but which amount to a kind of protectionism.

I will write more fully about all this when the dust has settled. For the moment, those who are interested might like to run their eyes over the following:

The amending legislation itself

My article extracting those parts of the rules of specific relevance to eDisclosure and case management

A much more comprehensive article by Kerry Underwood called Costs Management Orders Including the new CPR which, like my article, predates the latest developments

A litigationfutures article by Neil Rose called Major widening of costs management exemption for commercial cases.

A note (its formal status is unclear and it is just called “this document” signed by the President of the Queen’s Bench Division and the Chancellor of the High Court setting out, and purporting to explain, the extent of the backtracking.

The problem, apart from the overriding sense of utter shambles, is that amending statutes can be confusing enough with their necessary cross-references, removals, additions and replacements. The “document” with its extended exemptions, its side-reference to a £2 million ceiling which appears (don’t ask me) either to claw back part of the exemption or to qualify the original position (I assume in fact that it relates to the surviving cases in the QBD), and its conclusion that “it is envisaged that costs management orders would be made in all cases except where there is good reason not to do so” leaves me unwilling to express a definitive view on what applies where.

Let’s be clear on this though:

There is no change to the provisions relating to pre-CMC exchange of information, and about attempts to reach agreement on the scope and on the method of giving disclosure.

These include an obligation to estimate the costs of disclosure – it is not clear whether their Lordships overlooked this in their scrabble to be relieved of budgetary considerations, but I see nothing in the amending “document” which affects this.

We can expect to see strict enforcement of the obligations – so far as I can see, the judges have no room to wriggle on this. As it happens, I am not in favour of over-strict enforcement of these provisions, recognising that many will face genuine difficulty in the first few months. That, however, is what the rules say, and a judge really has no alternative but to take a strict line.

Being objective about this, the judges are not the only ones with doubts about budgets. Many lawyers involved in big commercial cases think them irrelevant and others appeared to accept that the whole idea is beyond them. Well, if they can work out which cases, at what level of claim, can properly be taken to which Division, then they can duck that part of the problem for the moment. I do not myself see what is so special about litigation that it should be exempt from the normal principles of commercial risk assessment, but the Ditchers and Backwoodsmen have carried the day for the moment. Let’s see what happens as we spend another two years trying to take a proper stab at the subject. With any luck, we will see some key retirements over that period.

As always, I am more interested in the benefits rather than the burdens. Clients will like the idea that costs are being controlled, not least the costs of opponents which they might themselves have to pick up one day. Lawyers who can show that they are on top of budgets and metrics put themselves in a position both to win clients and to impress their opponents into settlement by their grip of the new rules, their understanding of the implications, and their knowledge of the “tools and techniques” (as Practice Direction 31B puts it).

As I say, I will write more about this in due course.

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Huron Legal hosts post-LegalTech discussion in London

Nigel Murray, managing director of Huron Legal in London, was the host this week of a discussion and dinner at the Cavalry and Guards club whose purpose was a roundup of LegalTech from a UK perspective. This has become a fairly regular event and a good opportunity for those who went to LegalTech to report back to those who were unable to be there.

The UK contingent at Legaltech was smaller than usual this year. There seems to be no consistent reason why regular attenders gave it a miss: budgetary constraints provide an obvious answer; there may be a sense that the format has little to offer to non-US people (I do not agree, merely surmise that others might think so);  anecdote suggests that there is a lot of work on at the moment which, coupled with the shortage of experienced  people, may mean that the regulars could not be spared for a week away.  It would be fair to say that LegalTech showed little interest in us this year – so far as I could see, the Integreon panel in which I participated with kCura (on the Jackson reforms)  and UBIC‘s cross-border session were the only ones which paid any attention to the world beyond US borders.

Nigel Murray, Andrew Haslam of Allvision and I were the only ones present at the Huron evening who had been at LegalTech. Andrew Haslam had with him the draft of his usual roundup article which will appear shortly. Nigel identified some key themes and the rest of us kicked them about.

Preservation and proportionality on the agenda for US litigation

There is a lot going on in the eDiscovery / eDisclosure world at the moment, what with new Civil Procedure Rules in England and Wales, and with products, appointments and webinars to write about and conferences to plan for.

There has also been a stream of interesting articles which are worth passing on. I would normally seek to add some value with commentary of my own rather than merely give you hyperlinks, but they come thick and fast, and it seems better to pass them your way whilst they are topical rather than wait for an opportunity to expand on them. Besides, the articles in question have plenty of meat of their own and I do you no great service by adding more.

The subject is pending revisions to the Federal Rules of Civil Procedure, a subject which I have already covered in an article called A new definition of relevance in US eDiscovery? which was itself based on an article by Ralph Losey called Georgetown Part 2: New Rules are Coming! There was a curious lull after that, with relatively few US commentators seizing on two points in particular which seemed to me of significance – the proposed express incorporation of proportionality into Rule 26(b)(1) and planned amendments to Rule 37(e) which aim to clarify the “safe harbor” from sanctions where documents are deleted as a result of a “routine, good faith operation” of computer systems.

The problem (or one of the problems) with these areas is the lack of precision implicit in both. Preservation decisions turn on the “reasonable anticipation” of litigation, and anything involving the word “reasonable” involves a degree of subjectivity. Where a client is contemplating a voluntary but irrevocable decision such as the deletion of data, the average lawyer will err on the side of caution in circumstances where severe sanctions may be invoked against the client.  The present wording of Rule 37(e) gives too much scope for “average” lawyers to take refuge in the safe course which urges clients to keep everything “just in case”. “Just in case of what?” the clients might ask. There are circumstances which will clearly warrant sanctions; there are those which equally clearly do not; there are grey areas. The lawyer’s job is to discriminate between them where too many simply give the risk-free advice to keep everything (and take a fee for giving it).

The Civil Procedure (Amendment) Rules 2013 relating to disclosure and case management

This post has been amended to take account of the alterations announced AFTER the Civil Procedure (Amendment) Rules had been approved by Parliament. If that part of this post which relates to costs management has lost some clarity as a result, I would not be a bit surprised. We wait for the whole lot – statute, the “document” which announced the results of “further reflection”, the amended Rule and Practice Direction 3D. Then no doubt we will start seeing some case law as parties and courts try and work it all out.

Note that the case management provisions relating to Disclosure remain intact; they include a duty to estimate the costs of giving Disclosure. Note also that the “document” giving notice of the amendment ends as follows:

Subject to the limited exceptions which will be dealt with in the direction, it is envisaged that costs management orders would be made in all cases except where there is good reason not to do so. Even when the exceptions in the rule and the direction apply, the use of costs management should always be considered

See my article Costs management shambles defies parody but case management still has teeth.

The Civil Procedure (Amendment) Rules were published yesterday. They cover a wide range of matters, all to take effect on 1 April (subject to certain specific transitional provisions relating to discrete sections).

I give below the parts of most interest to those concerned with disclosure, case management and budgets. It is notoriously difficult to copy sections from statutes, particularly amending statutes, partly because their effect can be obscured by the (wholly necessary) cross-references to existing sections and other changes, and partly because of the “clever” way that text editors seek to renumber paragraphs and sub-paragraphs once divorced from the structure of their source.

Section 4

Insert the words “at proportionate cost” into the definition of the Overriding objective in Rule 1.1 and “enforcing compliance with rules, practice directions and orders” as an additional part of the description of the court’s duty in Rule 1.2.

The latter obviously creates no new duty for lawyers or judges (those practising in civil courts are expected to know the rules and practice them; it is gross incompetence not to, as HHJ Simon Brown QC reminded us in Earles v Barclays), but signals a new toughness with defaulters.

Section 5

Active management taken to a new level:

The court may contact the parties from time to time in order to monitor compliance with directions. The parties must respond promptly to any such enquiries from the court.

Welcome to UBIC as new sponsor of the eDisclosure Information Project

It is a pleasure to welcome UBIC as a new sponsor of the eDisclosure Information Project. Theirs is a name which I have known about for some time, but it was only at LegalTech that I had the opportunity of meeting them, thanks to the indefatigable Sasha Hefler of Strategic Brands on Fire, who knows everyone and who introduced me to Marketing and Business Developer Manager Sunil Mudunuri.

Although UBIC began work in eDiscovery as a Japanese company specialising in the languages of the region, it is also a mainstream player in US eDiscovery. Its client list includes NEC, Panasonic and Ricoh all of whom, with many other Asia-Pacific companies, have eDiscovery requirements which cross borders, particularly to the US.

The traffic passes the other way as well, as corporations in the US and in Europe are increasingly involved in the Asia-Pacific region with its language issues and diverse data protection and privacy regimes.  If you can handle those, then you can certainly handle the implications of purely domestic US eDiscovery, earning UBIC a place as a Visionary in Gartner’s 2012 Magic Quadrant for eDiscovery.

FTI Report – Advice from Counsel by Ari Kaplan: Trends that will change E-Discovery

As it did last year, FTI Technology has commissioned a study by Ari Kaplan called Advice from Counsel Trends that Will Change E-Discovery (and What to Do About Them Now). This is based on interviews with 30 inside counsel with the aim of identifying the most Important forthcoming trends and seeking their guidance as to what is required to face the changes.  It makes sense, does it not, if you sell software and services, to find out what your client-base expects – they are, after all, in the front line, and are simultaneously the canaries in the mine and the influencers, able both to predict forthcoming changes and to identify what is needed to meet them.

Ari Kaplan’s reports tends to be among the more influential published during a year – I found myself quoting from his 2012 survey all the way through last year. It would be odd if, having commissioned the survey, FTI do not take notice of its findings, and there is indeed a close connection between the feedback received from inside counsel and the recent developments in FTI’s software and service offerings. The messages, however, apply more widely than to a single provider.

Blog posts on eDiscovery | eDisclosure in January 2013

Here is a list of the 58 blog posts published in January 2013 on my Commentary Blog and Updates Blog. They got 9,464 page views between them.

As mentioned in a recent post, the web site has been smartened up a little as part of a general review. Some old material has gone and there will be new sections, not least about the Jackson Reforms, shortly (seeing the final form of the rules would be a a good start).

A spate of post-LegalTech posts is on its way, spread across the next few days.

Epiq Systems survey points to a rise in UK and European eDisclosure

A new survey by Epiq Systems throws light on the recurring (and generally unanswerable) question as to the amount of eDiscovery work in the UK and Europe. One cannot assess the actual volumes, but it is helpful to know what large corporations and their lawyers are anticipating.

I get calls occasionally from (mainly US) providers of eDiscovery / eDisclosure software and services who want to know how big the European eDiscovery market is.  My usual answer (after making sure that the caller appreciates that the UK and mainland Europe have entirely different systems of law) is that anyone who purports to answer this question is kidding themselves.

Whilst it is possible to identify UK civil litigation trends from figures published annually by the Ministry of Justice, this tells us nothing about the scale of the eDisclosure required – we do not know how many cases reached the formal disclosure stage, how much disclosure was undertaken independently of court timelines, or how big the exercises were. There are no statistics for investigations, whether internal or for regulatory purposes, nor for arbitrations and other forms of dispute resolution. What do we mean by “the European eDiscovery market” anyway, when much of the work is US-led, performed in Europe in order to comply with EU data protection and privacy requirements?

It is helpful, therefore, that Epiq Systems has commissioned a survey of law firms and larger corporates to find out what they are experiencing and (even more usefully) what they anticipate in the foreseeable future.The survey, which you can find here and which is summarised in this press release, points to a significant increase in all the components which comprise an eDisclosure problem – increases in data volumes, more major litigation and regulatory activity and increased difficulties in finding the required data, not least because of the ever-wider range of devices and repositories in which it sits.

Post-LegalTech interim post

Yes, I know I have published nothing for days until yesterday, and only one post then. I  was at LegalTech in New York last week, and those who might expect me to write about it, about them and about their products and articles well know that LegalTech is not an environment in which one can sit down quietly and write.  I suspect that the public relations man who was on my back within hours of my return is not familiar with the market – like so many of his breed (though there are some very good ones), he sees his job as just pushing out press releases and chasing journalists to write about them, feeling no particular need to understand or know anything about the context. Well, I am not a journalist, and prefer to let the post-LegalTech dust settle – there is no chance of being heard, or read, in the hub-hub which accompanies and follows this noisy event. Much of the new material deserves better than that.

Besides, a week away at a conference brings its own challenges – not just the lack of sleep, the meetings, the demos, the dinners and the parties, nor just the fact that there is someone interesting to talk to round every corner, but the dull routine of stacked-up correspondence, of future conferences requiring input, and expenses slips to file.

The end of an era: law firms, eDiscovery, Susskind, the year 1599, dinosaurs, and a yellow scooter

Sometimes one gets the sense of being tangibly at the end of an era – the door is closing and, perhaps, others are opening. I felt like that, quite suddenly, on my way to LegalTech in New York a few days ago as a result of the conjunction of three different sources. One of them involves the year 1599, the end of chivalry and the rise of a new merchant class, and another features dinosaurs and a yellow scooter. Those who have been with me a while are used to apparently random elements coming together in the last reel to reach an eDiscovery conclusion.

Richard Susskind’s Tomorrow’s Lawyers

The door which is closing will leave behind it the traditional law firm structure of partners selling at hourly rates the services of themselves and legions of  associates. There is nothing new in this prediction – Professor Richard Susskind has been making it for years, and one of my sources is his latest book, Tomorrow’s Lawyers.  The book is addressed to those starting out in the legal profession and to junior partners, and is subtitled An Introduction to Your Future. It restates views expressed in Susskind’s earlier works, especially The End of Lawyers?, sketches out the new legal landscape as he expects it to be, and (most interestingly) looks at the prospects for younger lawyers and at the skills they will need for the new legal landscape.

The points are all familiar ones – Susskind is cheerfully unrepentant about saying the same things for years, not least because time has invariably proved him right. The most specific predictions – about the use of e-mail and websites, and about the use of technology to standardise and commoditise the delivery of services – were once derided but are now part of life. The broader predictions, effectively signalling the end of the traditional law firm model, have always seemed reliable but distant, something on the horizon which lawyers might hope not to reach before retirement. My sense on finishing Tomorrow’s Lawyers is that we can now see the waves crashing on the rocks. We have reached the horizon.

More specifically for litigation departments, the “cottage industry” approach which Susskind derides will die, and probably in 2013. eDiscovery / eDisclosure, the major cost component in many cases, is still about finding the evidence, but has become an exercise in search, in project management, in statistics, in budgets and metrics. The point is not so much that lawyers are unused to this, but that technology, and those who know how to use it, can do it better, more cheaply and to a higher quality – you will perhaps recognise a well-known Susskind paragraph in this. The quality and accuracy of such tools increases yearly; just as significantly, the rise of managed document review providers offers the transparency and predictability of time and cost which (not coincidentally) is the aim of both courts and clients. It is not that lawyers cannot compete with these new business models but that that few of them seem willing to try.

I will come back to that in a moment.  What does the year 1599 have to do with it?

The Jackson Reforms encourage proportionate eDisclosure / eDiscovery in any jurisdiction

I am taking part in a panel discussion at LegalTech next week with Integreon and kCura on the subject of the Jackson Reforms. We will emphasise that the rule changes generally reflect duties to which lawyers are subject anyway, and in any jurisdiction, to find the best tools and techniques for conducting disclosure / eDiscovery proportionally.

I pointed yesterday to an observation by Mr Justice Ramsey that there will be “a few sweaty palms” as lawyers face the forthcoming changes to the UK’s civil procedure rules. Collectively known as “the Jackson Reforms” after Lord Justice Jackson who inspired most of them, they have also acquired the nickname “the Big Bang” thanks to a decision to roll out all the changes together.

This seemed a mistake to me when it was first announced 18 months ago, and it seems even more misguided now that we are a few weeks away from the implementation date and have yet to see the final form of the rules. I wrote about that in my article Uncertainty means expense as we wait for the Jackson rules.

The combination of fear and heightened expectations which results from this obscures the fact that the rule changes relevant to the disclosure aspects of case management are radical only in that both judges and lawyers have ignored the rules as they stand – a point which Lord Justice Jackson emphasised in his Review of Litigation Costs. They also reflect what both clients and courts should expect anyway.

Global Aerospace predictive coding results approved by judge

Step-by-step, predictive coding is gaining the acceptance in US litigation which was anticipated for it during last year. The latest advance is that the judge in Global Aerospace Inc. et al., v. Landow Aviation, L.P. dba Dulles Jet Center, et al who approved the defendant’s use of predictive coding has now gone on to approve its results. In a jurisdiction which is driven to the point of obsession by precedent in the broadest sense of that word, almost to the exclusion of first principles, this matters very much.

The story is briefly summarised in an article by Legal Technology News called Predictive Coding Completed in Global Aerospace Case. More detail can be found in an article on the OrcaTec website called Global Aerospace: Predictive Coding Results Approved By Judge for 1st Time. It was OrcTec’s software which was used to achieve the approved results.

Reed Smith: 6 reasons to Insource Litigation Support

A lot of what I write suggests to law firms that their clients’ interests and, indeed, their own, may lie in delegating much of their eDiscovery / eDisclosure function to others. I usually link this to Professor Richard Susskind’s observation about how law firms must find ways of working which are quicker, cheaper, more efficient or to a higher quality “using different and new methods of working”.

Outsourcing, in its various guises, must be considered in this context, whether that be by using software which is hosted and managed by someone else or by taking advantage of the many (and competing) managed review services which can often perform this most expensive component of eDiscovery / eDisclosure to a quality and at a cost which few law firms can match.

I am careful always to make it clear that outsourcing is not the answer in every case, but is something which should be considered alongside purely internal solutions.  As the UK moves towards costs budgeting and enforced proportionality, the ability to offer alternative ways of giving disclosure becomes more important. You do not need to be driven by the rules of any one jurisdiction to want to be able to offer clients and the court a range of options.

Uncertainty means expense as we wait for the Jackson rules

An article by Neil Rose on the litigationfutures site is headed 10 weeks until Jackson and still no rules: LSLA chief warns of chaos. The reference is obviously to the wide-ranging reforms to the Civil Procedure Rules due to take effect on 1 April. The LSLA is the London Solicitors Litigation Association, whose president, Francesca Kay, does not understate things when she describes this as “wholly unacceptable”.

The case management aspects of the rules which relate to eDisclosure include the extension to a wider range of cases of the duties to discuss eDisclosure, a “menu option” which replaces the present default of standard disclosure, express emphasis on the judicial duty to direct the methods for giving disclosure and, of course, the new budget provisions.  Or so we believe – until we actually see the rules, we can only assume that they will follow what was said in Lord Justice Jackson’s speeches of last year, but for which we would be entirely in the dark. Even if the form is identical, we have yet to see the all-important transition provisions.

Lord Justice Jackson has, of course, been seriously ill, and it is no reflection on him that there has been this delay.  The Civil Procedure Rule Committee has all the drawbacks, as well as the alleged advantages, of a composition intended to reflect every group with an interest in the rules.  The downside of such bodies is that everybody wants to be heard, whether they have anything to say or not.  It would be good sometimes, on such committees, to hear someone say “I know sod all about this subject, so I’ll keep my trap shut”, but it never seems to happen.

The actual drafting lies with the civil servants in the Ministry of Justice, some of whom – how shall we put this? – are better than others. One suspects that for many of them the allure of the 17.50 to Esher outweighs the needs of court users.

Litigation solicitors, trying to give strategic advice to clients whose cases will be affected by the rule changes, really do not care who is to blame.  It is known that the policy intent behind the rules includes more stringent enforcement of them, and it places an intolerable burden on judges, as well as on court users, that the final form of the rules has yet to appear. The whole purpose of the changes is to reduce costs, but this delay, and the compliance scramble which will ensue, is bound to cost someone – the client or the lawyers (but not the civil servants of course) – significant sums of money.

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Some predictive coding resources useful for UK lawyers

I am increasingly being asked to talk about predictive coding in the UK, and the subject warrants an article of its own. I will come to that shortly, but meanwhile point you to two articles published in the last few days which, although American in origin, serve as an introduction to those new to the subject.

One is an article in KM World called What is Predictive Coding?: Including eDiscovery Applications. That opens with a useful quotation from Warwick Sharp of predictive coding provider Equivio which reads as follows:

Predictive coding is essentially a learning technology. What predictive coding is able to do is get input from a human being, who reviews samples of documents and marks them as relevant or not, and then those decisions are input into the predictive coding engine, which is able to generalize those decisions across the entire collection.

In other words, a relatively small amount of input at the beginning of the process is used to form provisional judgments about the rest, with obvious potential for saving time and money. The “learning” is continuous, in that the system refines its conclusions as the results are validated – and it is vital to appreciate that validation is a key component of predictive coding technology.

The article goes on to summarise the US case Global Aerospace, Inc., et al. v. Landow Aviation whose messages about the early reduction of volumes, and thence time and cost, are timely ones as the UK faces a new regime of court-led control and budgets. One of the points arising from the article is the absence of judicial guidance which, unsurprisingly, is the question I am asked most often when the subject comes up in the UK.

CBS broadcast highlights winners and losers from technological advances

eDiscovery software provider iCONECT featured in a US television broadcast about the effect of technology advances on business and employment. As Richard Susskind publishes his new book on legal business and well-known shops disappear from the High Street, we have to accept that world is changing. There are opportunities for some.

A CBS broadcast called 60 Minutes recently included a segment on technological advances and their impact on jobs. As its title Are robots hurting job growth? implies, the broadcast was largely about the effect on employment as machines replace humans at work. The program covered some repetitive physical tasks of the kind which largely involve moving things from one place to another, but it covered also the rise of software applications in the financial, medical and legal markets, and used clips of iCONECT users to illustrate how technology has replaced the manual review of paper.

We see machines whizzing round a warehouse and delivering stock to be packed, little trucks touring hospital corridors with meals, medicines and laundry, and machines able to do repetitive tasks in factories. Positive and negative themes compete for attention: the warehouse robots each replace 1.5 employees; on the other hand, equipment like this allows the repatriation of manufacturing from China – Philips has brought the production of electric razors back to the Netherlands, for example.

On the business and professional side, we  are shown computers dispensing cash, printing airline boarding passes, and conducting stock market transactions, while IBM’s “Watson” wins the television game show “Jeopardy”. It is easy to see how modern analytical  eDiscovery tools like iCONECT’s XERA fit into this context, with a quick glimpse of a pile of cardboard filing boxes to remind us of the recent past.

Symantec data retention survey highlights gap between retention beliefs and practices

All surveys, in any industry, have the aim of promoting the company which commissions them – why else would they bother? A new survey about document retention beliefs and practices – and the gulf between them – is, however, valuable for all of us and not just for Symantec who did the work.

Symantec has software solutions which extend across the full range of information management problems, from e-mail archiving through to eDiscovery / eDisclosure. It is well placed, therefore, to conduct a survey examining how enterprises manage their electronically stored information and prepare to meet eDiscovery obligations.

eDiscovery is not, of course, the only reason why a company needs to keep its information under control. Those with an eDiscovery focus (not Symantec, who often make this point) tend to overlook that much information has a business purpose or is kept to meet a statutory regulatory obligation, and that such information is of little value if no one can find it and if there is no discrimination between that which is useful and that which is not.

Where are we now on legal hold and self collection?

Commentators in other jurisdictions, me included, have expressed wonder at the procedural hurdles which US case law developments in the past six years have placed in the way of parties preparing to give discovery. We don’t criticise the need to do the job properly – to preserve that which ought to be preserved and to collect it in a manner which is capable of being defended in court – but the procedures as they have developed appear to have paid more attention to formal niceties than to the actual needs of most cases. Requirements developed to meet the worst cases seem to have been applied to every case, regardless of the degree of actual risk that important documents will be missed or destroyed.

There are signs, perhaps, that US courts are stepping back from positions which are now seen as major contributors to wasted expense, as rule-makers and judges rethink the balance between cost and utility and consider how to control (and if necessary punish) those whose conduct puts really does put justice at risk without burdening every party to every case with expensive processes which are disproportionate to the value of the case and the risk of injustice.

Some of the things said at the Georgetown Advanced eDiscovery Institute CLE in December give clues as to the thinking which is going on as to the future. I will come back to that in another articlee (or two) but it is worth reviewing where the US has got to so far and to consider how parties can minimise the risk of getting it wrong. One of the specific issues is the extent to which it is prudent for companies to collect their own documents and data.

This is one of the subjects covered by Daniel Lim, VP and General Counsel of Guidance Software, in an article called Rolling the Dice on Legal Hold and Self-Collection: Not Worth the Risk on the Corporate Counsel web site. The article  gives a good summary of the present state of the US law relating to legal hold obligations for civil proceedings and to self-collection, that is, the collection of relevant documents and data by the party itself rather than by experts directed by lawyers. Although the article’s focus is on US civil proceedings, much of it applies in other jurisdictions.

Blog posts on eDiscovery | eDisclosure in December 2012

Here is a list of my blog posts of December 2012 on eDiscovery / eDisclosure and related matters. After several months of experiments, I have abandoned my Google Plus page for my short eDiscovery posts in favour of a second WordPress blog, called eDisclosure Information Project Updates. This blog has its own email sign-up for those who want to be tipped off about new posts.

Google Plus has really good SEO (Search Engine Optimisation), and the existing posts will remain there. Google’s clunky interface was one push factor; another was the feeling of being at a party which everyone else had skipped, despite the tiresome G+ focus on “community” and other things which Facebook does much better if you like that sort of thing – great for florists, car mechanics and High Street solicitors, but of no interest to me.

The new WordPress blog started delivering good SEO almost at once. I can extend its features, adjust its appearance and be sure that it will not acquire some tedious new “feature” next week because a hyperactive geek at Google has some syndrome which requires constant change for its own sake.

I have also abandoned the practice of summarising the short posts, giving a list like the one below instead. The SEO value of the summaries and the links from them was not commensurate with the very significant input which they required. I am not remotely interested in all the detailed “campaign” stats which marketing people get so hung up on. One thing matters to me – how many people go to my articles and thus past my sponsors’ logos? The average number of page views last year, weekends and holidays included, was 224 per day.

The list below, and the parallel one on my web site, are part of the web of cross-links (Twitter and LinkedIn provide the rest) which ensure that no-one can do much research on eDisclosure / eDiscovery without finding something by me.

December was a short month – I was away on holiday for a week quite apart from the long Christmas and New Year break. The volume of interesting material now being published by others is such that there is always a queue – that is, a stockpile of subjects, some already written about, which I hold back to avoid swamping the readers. Apart from time-critical things like webinar dates, I don’t think promptness matters too much – if it is important, it will still be important next week.

Americans abroad: US begins to understand foreign attitudes to eDiscovery

Part of my reasoning in deciding not to go last year to the Georgetown Advanced eDiscovery Institute was the knowledge that others would write comprehensively about what was said there – Georgetown brings out the likes of LTN’s Monica Bay who can be relied upon to produce accurate, comprehensive and readable reports of what was said. A lot of important ground was covered at Georgetown – predictive coding, “judicial activism”, proportionality, the preservation rules, and the definition of “relevance” all got an airing in ways which indicated that real change might be coming, not just in rules and procedure but in understanding. This was particularly true in respect of foreign discovery which was considered by a panel which included Judge Scheindlin and Jonathan Armstrong, a partner at the London office of Duane Morris and a well-known speaker and writer on cross-border discovery.

My sources as to what was said are Monica Bay’s article Judge Scheindlin Demystifies Foreign eDiscovery and a short podcast (No 80 on the list) made by Jonathan Armstrong and his partner Eric Sinrod as part of their weekly Tech10 podcast series.