EDiscovery leaders and career opportunities highlighted by US legal publications

January 16, 2014

Electronic Discovery / eDisclosure is a new discipline. It has passed the Wild West stage but it is still new enough and small enough that the contribution of its founding members can be recognised with the perspective of time. Three US legal publishing companies have produced lists recently of individuals whose contributions have helped shape the industry.

What value lies in reciting other people’s lists? I hear you ask. Well for one thing, my coverage is selective, with a bias towards people I know or have some connection with. For another, two of these articles are not readily available and it is not open to me to just link to them. Third and more importantly, I am keen to encourage people to see a promising career path in eDiscovery; we can’t all be Laura Kibbe or Andrew Sieja, but we can see opportunities in this young and growing business area.

NLJ’s inaugural list of 50 Business Law Trailblazers and Pioneers

Most recent of the articles is the National Law Journal’s inaugural list of 50 Business Law Trailblazers and Pioneers (you see where I got the Wild West imagery from).

This, as its name implies, is concerned with the practice and development of the wider legal scene; I am not sure that electronic discovery would have rated a mention in such a list ten or even five years ago.

Epiq - Laura KibbeOne of the people on the list is Laura Kibbe (pictured left), a Managing Director at Epiq Systems, whose career, summarised in this Epiq press release, has encompassed all sides of the eDiscovery battlefield – as outside counsel, in-house counsel, and currently as Head of Expert and Professional Services for Epiq’s eDiscovery business. I have the pleasure, from time to time, of sharing platforms with Laura, most recently in Hong Kong last year. Not everyone in this industry has the ability to explain lucidly what are the business benefits (as opposed to the pure technology benefits) of eDiscovery tools and processes. Laura has this ability, and it is always a pleasure to share a platform with her. Read the rest of this entry »


Moving forward with eDiscovery in the Hong Kong civil courts – the Epiq Systems / ALB Round Table

November 4, 2013

I have reported briefly in earlier articles the round table which I moderated in Hong Kong on 13 September at which leading eDiscovery lawyers assembled at the invitation of Epiq Systems  and Thomson Reuters’ Asian Legal Business to discuss the discovery in the civil courts. Celeste Kemper, Director of Epiq’s Document Review Services Asia was in the chair.

HKRoundtableEpiq Systems / Asian Legal Business eDiscovery Round Table (photo by ALB)

The main interest lay in plans by the Hong Kong judiciary to produce an eDiscovery practice direction based on Practice Direction 31B used in England and Wales since 2010. A consultation draft is expected before the end of 2013.

We now have a report of that round table from Asian Legal Business in an article called eDiscovery: Wheels in motion for HK which passes on the key points made by some of the those who were present. The article is here and the whole issue of Asian Legal Business can be downloaded here.

Although Hong Kong civil procedure is largely based on that of England and Wales, the Practice Direction of 2010 (I was a member of the working party which drafted it) is part of a sequence of developments which began with the new Civil Procedure Rules in 1999. One of the key differences is the definition of a disclosable document – Hong Kong retains the Peruvian Guano test of relevance which, like the US Federal Rules of Civil Procedure, is very wide; the test in England and Wales is whether the document is supportive of or adverse to the case of the giver or any other party and that, and other rules designed to limit the scope of disclosure are picked up and expanded in PD 31B. Read the rest of this entry »


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

October 3, 2013

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

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

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

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

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

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

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

September 18, 2013

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

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

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

Towards Polzeath

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

St Enodoc

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

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

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

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

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Information Governance: the way the wind is blowing

August 18, 2013

eDiscovery for litigation is important, but is only a part of the value which lawyers and eDiscovery providers can bring to corporate clients. The skills and technology developed to meet eDiscovery challenges can be applied to wider issues, some of which directly affect the cost and risk of eDiscovery as well as having value in their own right.

I have published 8,000 words this week, spread across 18 articles. Between them they cover a wide range of topics, countries and companies relating to the electronic discovery / disclosure of electronic documents: rules, technology and privacy have all turned up;  the UK, the US, and Hong Kong all featured, and you were spared a couple of articles about France which have not (yet) made it beyond draft stage. Coming too late for me to cover was an apparent attempt by US Judge Scheindlin to keep alive the fear of sanctions on which so many millions of dollars have been spent since her Zubulake Opinions. Is she a stern upholder of necessary standards or an outdated barrier to sensible and proportionate discovery? I will read the Opinion first, but the headlines by those who have read it suggest a certain lack of sympathy for this judicial rearguard action.

This volume of articles (sorry about that) is partly deck-clearing on my part, making way for what comes out of ILTA in Las Vegas in the coming week. It is partly a reflection of the breadth of interesting topics which connect to eDiscovery. It is partly a consequence of the busy-ness of the industry, when every day brings new developments, new products and new views which are worth passing on.

I have, however, barely mentioned one topic whose importance overrides all the others for the companies whose electronic data we are concerned with. Almost all the things which are seen as problems in litigation or in a regulatory or an investigations context spring from the volume of information which companies keep and for which many of them have no plans. It costs them a fortune, in storage, security and management, in eDiscovery obligations which strike them from time to time and because of the lost value which is tied up in information which no one can ever find. Read the rest of this entry »


Proactive use of technology-assisted review beyond litigation

August 16, 2013

Although the use of predictive coding / technology assisted review seems new to litigation lawyers, the concept behind it has been used for years and in a wide range of business applications. Reduced to its essentials, predictive coding takes a subset of source material and, through a mixture of human and technology input, identifies wider document sets by reference to the characteristics of the training set.

The application of this to litigation eDiscovery, to regulatory and internal investigation is obvious (or it jolly well should be), but the principles apply equally in other business circumstances where it is necessary for a company or its lawyers to identify things which may have impact later.

I use that neutral word “things” deliberately, because finding documents or other electronic sources is just the beginning of the enquiries which must be made – the technology is not an end in itself, nor is it enough merely to identify the right sources: what a company needs to know is what it should be anticipating so that contingency plans can be made to deal with it. That has application in, for example, company acquisitions where one company may need to assess both the value and the risk lying in email and other documents of another, or on a product launch, particularly in a high-risk area such as finance, healthcare and pharmaceuticals.

It is the latter area which is focused on by Laura Kibbe, Managing Director, Expert and Professional Services at Epiq Systems. Laura was Senior Corporate Counsel and Managing Director of the eDiscovery Response Team at Pfizer Inc before joining Epiq and has unrivalled experience of the pharmaceuticals industry both as client and as service provider. She is also one of the most eloquent advocates of the proportionate use of technology to business problems, as I said in my recent article about Hong Kong where we did presentations together.

Her article on Law Technology News, headed There’s More to TAR Than Litigation, has the subheading Proactive use of technology-assisted review could help Pharma and other industries manage risk.

Laura walks us through the steps which might be taken in undertaking a pre-launch risk assessment for a new product and for helping to identify potentially non-compliant behaviour once the launch is accomplished. Her focus is on the avoidance of compliance risk, on protecting privilege as the exercise proceeds, and on the combination of informed legal thoughtfulness and technology to achieve these exercises proportionately. It is as good an explanation as you will find of the wider application of this breed of technology and (crucially) of the human input and thoughtfulness which must accompany it.

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Talking and listening in Hong Kong with Epiq and Consilio

August 13, 2013

I was back in Hong Kong recently, my third trip there in recent months. The primary purpose of this visit was to deliver a talk to the Hong Kong Academy of Law in the company of Epiq Systems. I went to some law firms with Epiq and visited a couple of companies in the company of Consilio, who also arranged  a first-rate dinner. The result of a short visit is necessarily a snapshot, but that was my third such snapshot in a few months and they accumulate in value. It is a place which bears multiple visits.

The title of the talk at the Hong Kong Academy of Law was The Intersection of Law and Technology in eDiscovery. I shared the stage with Laura Kibbe, Managing Director of Expert and Professional Services at Epiq Systems – a treat for me, this, since Laura is one of the clearest exponents of the use of technology in discovery. We were introduced by Nick Chan, a partner at Squires Sanders in Hong Kong, who had arranged the invitation.

HKAoL1

My role was to talk about the development of rules and practice in a range of jurisdictions which require civil discovery and (as the title of our talk implies) to show how technology developments and practical compliance with the rules intersect with and complement each other. By “complement”, I really mean that proportionate and defensible discovery cannot properly be given in compliance with the rules of any jurisdiction without at least some understanding of the available technology. The fact that the rules may not specifically require this (as is the case in Hong Kong) is really neither here nor there – there is a set of obligations to fulfil in relation to documents, and if nearly all those documents are electronic, then electronic means must be used to find and classify them if the costs of discovery are not to become completely disproportionate to the objective. Read the rest of this entry »


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