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

February 25, 2013

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. Read the rest of this entry »


Blog posts on eDiscovery | eDisclosure in December 2012

January 8, 2013

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. Read the rest of this entry »


Short eDiscovery Updates to end November 2012

December 6, 2012

This post summarises the posts on my Google Plus page during November 2012. I gave up on Google Plus after that for reasons given in my post here, and set up a new updates blog. A different form of index will be provided in due course for posts from 1 December. Read the rest of this entry »


The use of technology in regulatory investigations

November 1, 2012

Hobs Legal Docs was the sponsor of an interesting article in The Lawyer recently which emphasised the need to use technology to respond quickly to regulatory demands.

Those who find themselves overwhelmed by the timetables for eDisclosure / eDiscovery in civil litigation may like to consider the pressures faced by companies and their lawyers when a regulatory investigation turns up.  There are no nice long periods for reflection when decisions are to be made not only about the proper scope of the discovery exercise but also about the tactical and strategic implications.

Litigation searches are generally bounded by defined issues, and one can usually identify a date range and a handful of key custodians. Regulatory investigations often have no such boundaries and the question to be answered very quickly is “How deep is this pit?”. That in turn dictates the approach to be taken vis-a-vis the regulator, ranging from aggressive rebuttal to grovelling contrition, often backed (in cartel cases, for example) by a potential hurry to be the first to come clean – the “race for leniency” as one contribuotr puts it in the article.

If the use of technology like predictive coding seems optional in some cases, it is hard to see alternatives for some of these regulatory investigations. There is no time to set junior fee earners to making document trawls and it is vital to put senior lawyers to work at once to “teach the system how to look at documents in the way lawyers do” (as Mark Surguy of Eversheds put it in his Dublin speech last week). A ticking-off from a judge is a mild consequence compared with the effect on the share price and other significant things if one gets this reaction wrong. Read the rest of this entry »


Short eDiscovery updates to 13 October

October 13, 2012

Most of these updates on my Google Plus site are from the week ending 6 October. After that, I was at the Masters Conference in Washington and at an event given by Symantec-Clearwell at Tower Bridge, with no time to write. I am content, in fact, to come late to my summary of these short posts – it gives s second life to subjects which would otherwise sink in the Twitter-stream.

I keep a large stock of things to write about thanks to my favourite software product, Evernote – I dip into it whenever there is a spare moment and pull out something to link to. That is fairly easy; the subsequent linking – via LinkedIn and Twitter at the time of publishing, in these updates, and (in due course) in the master list of articles on my web site, is extremely time-consuming and a major addition to my work-load. The payback comes in the form of SEO (Search Engine Optimisation) both of my own articles and of those to which I link.

______________________________ Read the rest of this entry »


Short eDiscovery updates to 29 September

October 1, 2012

I was at a Washington conference for much of the week ending 22 September and the updates for that week are correspondingly reduced in number. This selection covers two weeks’ of my Google+ updates. Some of them relate to webinars etc which were pending at the time of the G+ notice but whose date has passed by the time the summary is published. In many cases, the link will take you to a recording.

Some of these updates relate to future conferences. There is a list of these on my web site. Read the rest of this entry »


Proportionality and a choice of technology from Hobs Legal Docs

September 3, 2012

Recent posts by Hobs Legal Docs remind us that the problems raised by e-Disclosure are resolved by adherence to principles like proportionality as well as by the selection of appropriate technology.

You don’t need scientific proof (though it exists, apparently) for the proposition that your brain does one of two things when subjected to too many choices:  after an attempt to assimilate and evaluate all the options, it either abandons analysis and plumps for something by instinct or gives up the selection process entirely and does without whatever it was which was being considered.

Something similar happens with words like “proportionality” which have multiple potential meanings and no certain definition, and subjects like “cross-border eDiscovery” which sounds like something which other people do, and only occasionally. They quickly become unnoticeable, like ambient music in a shop or the chatter of radio announcers – you have a vague idea that they are there but lose focus on content and meaning.

EDiscovery / eDisclosure has all these elements; multiple providers offer similar-looking solutions with terminology picked from a narrow vocabulary which includes polysyllabic words like “proportionality” and expressions  like “cross-border eDiscovery” whose meaning gets lost with every repetition. All these things do in fact have meaning and potentially have daily implications for lawyers.  In practice, proportionality is usually invoked only retrospectively when the lawyers are called upon to justify an alleged under-disclosure, and however important it appears at US eDiscovery conferences, UK lawyers give little thought to the implications of collecting documents and data from other jurisdictions. Read the rest of this entry »


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