LexisNexis eDiscovery conference in Singapore

As you might infer from its name, the e-Disclosure Information Project set out with purely national ambitions. England and Wales is the only jurisdiction in the world to give the name e-Disclosure to the process of identifying, preserving, collecting and exchanging documents for litigation. If I had known that two years later I would be speaking in Brussels, Washington and Singapore within three weeks of each other, I would not have picked a name with so narrow a jurisdictional scope.

The wider I cast my net, the more it becomes clear that the jurisdictions which require discovery of documents (principally England and Wales, the US, Canada, Australia, Hong Kong and Singapore) have more similarities than differences in their approaches to the problems and the solutions raised by electronic documents. At one level this is obvious – all of these jurisdictions give pre-eminence to contemporaneous documents as the primary source of evidence, they have all seen a vast growth in volumes of evidence, and there are a limited number of ways in which court rules and procedures could develop to take account of mass documentation in adversarial proceedings in which justice is only accessible if it can be afforded. If you were to describe the problem to someone who, although suitably skilled and intelligent, had no knowledge of the developed law and procedures, you would end up with a solution whose essentials were broadly similar to those which obtain in the jurisdictions which I have named.

E-Disclosure Taster Menu in Bristol

I went down to Bristol last week with a group of electronic disclosure suppliers at the invitation of the Western Chancery & Commercial Bar Association. The aim, as in Birmingham last year, was not just to talk about electronic disclosure, but to illustrate it by showing and describing a range of applications and services

Bristol used to be Britain’s second city. In the 18th Century it grew prosperous on the triangular trade which took cloth and iron goods to Africa, slaves to America and tobacco, and sugar and rum back to Bristol. In 1841 the Great Western Railway connected it to London and, in an early example of joined-up commerce, you could travel on GWR trains and GWR ships from London to New York. Its relative prosperity declined as other places boomed and as different industries – ship-building, tobacco, cotton – had their heyday and fell away. There is more industry in the region than one sees from the M4 – I flew over the Severn Estuary on my way in from New York at dawn a couple of weeks ago and noted the miles of industrial zones from Avonmouth Docks down towards Bristol.

All that industry, together with property-related work from the West – Bristol is the first place of any size as you come up from Cornwall or out of Wales – has supported the growth of a strong legal and professional services business. Every other legal magazine in the late 1980s seemed to profile Bristol. Its population of around 400,000 makes it now Britain’s tenth city preceded by London, Birmingham, Leeds, Glasgow, Sheffield, Bradford, Liverpool, Edinburgh and Manchester. It can take as little as 90 minutes to get to London by train.  There are some large barristers’ chambers in Bristol and one does not get the impression that work is in short supply. Bristol is one of ten cities in Britain with a Mercantile Court, that is, a court with a specialist commercial list and judge or judges ticketed to hear mercantile cases.

All very interesting you may say, but this site is meant to be an information resource on electronic disclosure, not a local history, travel guide or Chamber of Commerce directory. Indeed, but disclosure comes with litigation; litigation follows industry and business; and the ability to win commercial litigation work from any region depends on the quality of local law firms and chambers, and on their ability to stop the work from heading to London. It ought to be possible, in fact, for the combination of legal skills, good transport links and an efficient Mercantile Court not just to stem the flow to London but to reverse it. The sixty or so barristers and solicitors who turned out to listen to us presumably want to draw work into their region.

E-Disclosure Information Project first birthday

November marks the first anniversary of what became the E-Disclosure Information Project. It did not have that name when I ran a half-day training session for judges in Birmingham last November but it was effectively launched with that event. This Commentary began a year or so earlier.

That first session was made possible by generous support from forensic collections expert FoxData whose Ian Manning has continued to back what I do, by turning out to speak and with useful information and introductions as well as financially. Tyrone Edward, now at Ernst & Young Forensic Technology & Discovery Services, made the suggestion for a business model which has allowed me to spend substantially all my time on spreading information about electronic disclosure. The Project is sponsored by the companies whose logos appear here, but on the basis that it is independent and product-agnostic.

The main outputs from the e-Disclosure Information Project are what I write here and on my website, and conferences. There are 228 posts on this site. None of them are simple regurgitations of press releases – PRs are invaluable sources of hard information, but I am more interested in the context and the implications of a software or services initiative than in the bare words of a press release.

LexisNexis and LDM joint venture

LexisNexis and LDM Global were hosts at a party on 6 November at the Andaz Hotel at Liverpool Street. The occasion was a link-up between them which brings together LDM’s role as a provider of a wide range of legal technology services and LexisNexis’ Hosted FYI.

The Andaz Hotel proved to be the former Great Eastern Hotel, which I remembered as a place of decaying plasterwork and dark corridors, selling curled sandwiches from under plastic domes or board-like plaice and soggy chips. It is now a cool destination, with dark walls hung with eye-catching pictures, glass tables and some extremely decent food and drink. My recollection of it, I realised, dates back to 1962, so a few changes might have been expected.

There are no marks for originality when describing a supplier’s products, and unless their own descriptions are top-heavy with hyperbole (in which case I remove it) it is easiest simply to pass on what they say about themselves. LexisNexis’ own description of Hosted FYI is as straight up-and-down as you can want – it delivers comprehensive data management know-how, online review and disaster recovery for law firms, corporations and government agencies. Hosted FYI is a secure, centralised, multi-user web review solution for processing, storing, retrieving, analysing, reviewing, redacting and sharing disclosure documents and Concordance databases quickly and easily.

Birmingham Law Society e-disclosure seminar

A collections expert, a data archive specialist, a commercial barrister and a judge took a Birmingham audience – the second audience there in three weeks – through the stages of data handling, from organising it on the clients’ server, through its collection, and on to its use in court. I was the warm-up act

Freshly returned (well, reasonably fresh, anyway) from electronic discovery conferences in Australia and the US, I was back in Birmingham on 23 October for an e-disclosure seminar organised by Birmingham Law Society. One of the speakers in Sydney, Geoffrey Lambert of KordaMentha, had referred in his session to the “Birmingham initiative” which suggests that we are making some impression. This was the second well-attended seminar in the city in three weeks, following the one at St Philips Chambers at the beginning of October.

Speaking and listening in Australia

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

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

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

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

Birmingham barristers see e-disclosure applications

A seminar in Birmingham allowed an audience of lawyers to see some of the applications used to handle electronic disclosure topped and tailed by some explanation of the litigation context. It was not just a trade show but a visual way to convey that the solutions are gaining on the problem

The e-Disclosure Information Project originated in Birmingham when Mark Surguy of Pinsent Masons introduced me last summer to HHJ Simon Brown QC, a designated Mercantile Judge at the Birmingham Civil Justice Centre. We brought it back there at the beginning of October when Edward Pepperall, a commercial barrister at St Philips Chambers, arranged for the Midland Chancery & Commercial Bar Association to invite us to give a reprise of a talk he had heard us give to solicitors a few months ago.

Ed Pepperall’s reasoning was that barristers are increasingly getting involved in the procedural aspects of Case Management Conferences. Birmingham may be ahead of other places because the judges there are known to practice the “active management” which the overriding objective requires and in which the parties are expected to take their part. The Commercial Court Guide, on which the Mercantile Court Guides are based, emphasises that the CMC is not just the old summons for directions. Judge Brown says of the CMC that is a “business meeting”.

If barristers are engaged at the CMC then they need to be aware – preferably well before they go in, and not just in the corridor outside – what the court will expect them to cover. Hands up all those who know about the obligation to discuss electronic sources of documents in Paragraph 2A.2 of the Practice Direction to Part 31 CPR. I thought not. What about Digicel (St Lucia) v Cable & Wireless? We did not mention that, because it had not been heard then. It has now, and we can expect many more orders requiring parties to discuss their sources and to take difficulties or disagreements to the judge.

Smoking guns, haystacks and teeth

It is not often that I devote a whole article merely to the opening remarks of the chairman of a conference, but then it not often that one has a former Lord Chancellor in the chair. Lord Falconer’s speech at the Legal Week Litigation Forum which covered the economic drivers to litigation warranted the space I gave to it. This page covers the session in which I played a part.

I was a panellist in a session called Streamlined litigation: assuring efficiency through applied technology, along with Robert Brown, senior director of First Advantage Litigation Consulting Services and Rachel Coldbreath of Cleary Gottleib Steen & Hamilton LLP. That we never got as far as my prepared notes is by no means a complaint. Quite apart from the fact that I can use them somewhere else, the one hour allotted to us raced by in an unusual amount of audience inter-action. This was explained partly by the fact that this was a litigation audience rather than one narrowly limited to electronic disclosure, and partly by the layout of the room – members of a group facing each other round a square of tables are somehow more inclined to speak out than one in rows of chairs.

Practical Guidelines for e-Disclosure Management

Litigation solicitors in private practice and in-house lawyers would have done well to be at the Ark Group conference last week. Run over two days within spitting distance of the Tower, it had the title Adopting Practical Guidelines to e-Disclosure Management for the Legal Profession. Practical it was, as well as conveniently located.

Its supplier sponsors included FoxData, Autonomy, CaseLogistix by Anacomp, Guidance Software and LexisNexis, all of whom are also sponsors of the e-Disclosure Information Project which I run. Part of the Project’s aim is to make connections between suppliers whose service or software offerings are in different parts of the wood – between them, these suppliers and their applications collect data, process it, host it for review, help with analysis and make it available for exchange with others. There is overlap and competition between them, but also a common interest in helping practitioners – and judges – understand what is available to tackle the problems of e-disclosure. Part of my role is to help the would-be buyers see both the wood and the trees.

LexisNexis release CaseMap 8

LexisNexis have released Version 8 of CaseMap, the application whose tagline “Case Analysis made easy” is amply justified by its functionality. LexisNexis are, of course, sponsors of my e-Disclosure Information Project, but I am on record as a CaseMap enthusiast since long before the Project existed.

I have not had the chance to look at the new version yet – you can download it easily from here – but the list of new features is enticing. Most attractive, in principle, is the new DocPreviewer review tool which is aimed at helping lawyers handle e-mail disclosure review for small to mid-sized cases.

No UK law firms at ILTA 2008

After this February’s LegalTech in New York, I wrote a piece called Why no UK lawyers at LegalTech? in which I suggested that UK law firms – partners and/or their senior IT staff – would benefit enormously from a few days in a place where almost every e-disclosure supplier and expert, including a large contingent of experienced UK litigation support managers, gather every year. There they could see demos of every application worth seeing, talk to pretty well everyone with knowledge and experience – and have a good time as well.

Off to Pasadena and ILTA

I am off tomorrow morning to Pasadena, coming back via Dallas where ILTA (the International Litigation Technology Association) is holding its big annual conference.

The draw in Pasadena is Guidance Software who, as I wrote in a recent post, were early sponsors of the e-Disclosure Information Project which I run, and who have been enthusiastic supporters ever since. This is a welcome opportunity to get to see the senior management, including CEO Victor Limongelli whom I met briefly in London last year.

ILTA is an opportunity to catch up with people with whom I correspond or speak but rarely see. There is an increasing amount of information-trading about developments in electronic discovery between those in the UK and the US, as well as Australia. The problems, and the solutions, are obviously similar. The rules and the practice are perhaps less alike in practical effect than they may appear to be. Superficial impressions of scale are misleading – big cases are big cases in all these jurisdictions, but most US lawyers litigating electronically are in small firms. What is different is the culture in which lawyers, judges, suppliers and clients work towards cost-effective solutions pro rata to all sizes of case, and cultural differences are best identified face to face.

Most of the Project’s sponsors will be there – OutIndex, Guidance Software, LexisNexis, Epiq Systems, Anacomp / CaseLogistix, Autonomy Zantaz and Trilantic – a chance to  meet the US people where generally I deal with the UK end, as well as to see others who may become sponsors. As at LegalTech in New York every February, I go with few pre-booked appointments, confident that the days will be filled with discussions which add value to what I do in the UK.

I should be able to write about it all from there, at least as a technical matter. The practice is likely to be otherwise.

If you are at ILTA and would like to know more about the e-Disclosure Information Project, do come and say Hello or send me an e-mail.

Home

Delivering knowledge by ear

I am always interested in seeking out different ways of delivering information about electronic disclosure – much of what I do in the e-Disclosure Information Project involves digging out news and comment, distilling what seems helpful, and pointing people towards it.

My own preferences are broadly traditional whether as recipient or giver of information. I like the interaction – or at least the potential for interaction – which you get from an old-fashioned lecture format and (as you will gather since you are reading this) by writing about the subjects. The web gives immeasurably greater reach to both these methods – as soon as I save this article, it can immediately be read by anyone with a web connection from Sydney to San Diego. Whether it will be, in August, is a different matter, but it will still be here when everyone gets back from their holidays, giving an unparalleled combination of immediacy and longevity. We have come to take this powerful reach for granted in a very short time.

Project sponsors ranked by Socha-Gelbmann

It is probably a grave dereliction of duty to disappear on holiday just as George Socha and Tom Gelbmann publish their annual Electronic Discovery Survey provider rankings, but that is no reflection on the performance of those of my sponsors whose names appear in it.

Anacomp, Autonomy Zantaz, Epiq Systems, Guidance Software, LexisNexis and Trilantic all appear, some of them more than once, in a survey regarded as the most objective and authoritative report on an industry whose 2007 revenues, at $2.794 billion, were up 46% from 2006.

E-Disclosure conferences give plenty to think about

Those who expect a daily addition to this collection of notes and essays (and I know there are a few such) may have wondered if I have run out of things to say from the paucity of posts recently.

Far from it, but I have been preparing for or attending three conferences this week, each of which has generated more than enough potential copy without leaving time to write it. What follows is a taster which I will follow over the next few days with more detailed reports.

At the Lawyer conference E-Disclosure – Beyond the Rules, I spoke with HHJ Simon Brown QC on the Commercial Court Recommendations and what the courts expect from you. We picked out the parts and the principles which apply to disclosure, and emphasised that everything we talked about applied as much in other courts as in the Commercial Court in cases where the volumes of documents made it proportionate.

If I had known the cost was hundreds not thousands….

The reactions at an e-disclosure conference point up the value of getting an idea of the likely costs before deciding that electronic disclosure is not for you. You cannot assess proportionality without doing so, and may be surprised by the answer.

On my first slide at an all-day seminar for CLT Conferences this week, I had a quotation from the Commercial Court Recommendations.

“Automatic disclosure will not take place until after the CMC, which decides on the scope of disclosure” [Para 68a]

One of the delegates immediately asked “Is this just about the Commercial Court then?”, putting his finger straight onto the central difficulty in trying to raise understanding about electronic disclosure, even with an audience which self-selected as wanting to know about the subject.

No, it is most certainly not just about the Commercial Court, nor only about big litigation between big, technically-skilled firms. Indeed, the implied assumption that “big” and “technically-skilled” go together highlights another point here – there are many big firms who have no idea about electronic disclosure, and plenty of smaller firms who do.

Guidance on benefits of e-Disclosure Project

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

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

First Law Society seminar on e-Disclosure

On Tuesday I gave the first in a series of ten regional talks on e-disclosure for the Law Society to an audience of 70 or so solicitors in London.

My starting point was the CPR requirements and powers – what they are and how the courts are using them. In that context, I stressed two things – that none of the powers are new and that, whilst the Commercial Court may be the formal test-bed for more rigourous practices, the rules apply everywhere. There are new pending developments – the proposed Technology Questionnaire and the formalisation of (inter alia) the disclosure obligations in a standard draft directions order – but the defence “these rules are very new and there is no case law” is not going to find a sympathetic hearing at Case Management Conferences, not least because the relevant rules have been in place since 2005.

Bringing International Discovery home to all

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

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

Aural Guidance on e-Disclosure

Something called the e-Disclosure Information Project is necessarily interested in exploring beyond the traditional speaking and writing ways of getting that information across, and this year has brought a number of recorded opportunities.

The Project is a loose confederation of a consultant, a judge and a litigation lawyer – me, HHJ Simon Brown QC and Mark Surguy of Pinsent Masons – plus those who sponsor my time (effectively all of my time now) in keeping the information flowing. One of the most active of the sponsors is Guidance Software, whose Patrick Burke was described to me last week (by someone who did not know I knew him) as being willing to go anywhere to find out about, and speak about, e-disclosure in any jurisdiction.

The common thread here is that each of Judge Brown, Mark Surguy and I have recently taken part in recorded sessions – podcasts and webinars – in company with Guidance Software. You may like to hear them.

E-discovery progress in Australia

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

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

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

LDM shows CaseMap integration

Regular readers will know that I am an enthusiast for CaseMap as a low-cost tool both for its primary purpose – the linking of litigation facts to issues – and as a simple way to handle disclosure. If today’s postings seem CaseMap heavy, that is because there were two CaseMap events last week.

The first was a visit to show it to HHJ Simon Brown QC at the Birmingham Civil Justice Centre, which I describe in a separate post (Judge how CaseMap gets to the issues). The second was a meeting of the CaseMap user group in London on Friday. The speakers were Bob Wiss, co-founder of CaseSoft, Christine Tomas of LDM and Dr Tony Cox, who gives expert evidence on health and safety matters, mainly to do with mechanical engineering.

Judge how CaseMap gets to the issues

I went to Birmingham last week with LexisNexis to show a judge what CaseMap can do. Why is it important for judges to see solutions like this, and what is CaseMap’s role in handling the issues in litigation?

Part of the aim of the E-Disclosure Information Project, of which this blog is a part, is to introduce to each other as many as possible of the people, things and concepts which have some role in the disclosure aspects of case management.

Some of these matchings are more obvious than others. I work with lawyers to look at how the CPR can work for them. I introduce people who have a problem to solve to providers who might have the answer. I pick up ideas from one discussion, one web site or one jurisdiction, and drop them into another. This much is a fairly obvious use of resources, information, contacts and knowledge, and seems to be appreciated.

Less obvious is the introduction of technology solutions to judges. Judges can neither buy nor recommend solutions, so it might seem on the face of it a waste of time on everyone’s part for suppliers and judges to spend time together. I disagree.

Discovering what to do about e-disclosure

The paucity of blog postings recently does not imply that there is nothing to write about On the contrary, there is too much going on to stop and write it all up. A quick summary of what has come up in the last couple of weeks gives you some idea of what the E-Disclosure Information Project does.

First, a recap on what it is for.

The broad idea is to promote understanding of e-disclosure by acting as a link between all those who have an interest in e-Disclosure – corporations, practitioners, suppliers and the courts. The expression “to have an interest” does not necessarily imply actual overt expressions of interest, nor even a recognition that the subject is of relevance.

Marcus Evans conference – E-Discovery Strategies

A good e-Disclosure conference will make you want to know more or, at least, will ring an alarm bell in due course. There are pitfalls to know about and practice development opportunities being missed.

I am just back from a conference in London organised by Marcus Evans with the title E-Discovery and Document Management Strategies. The fact that I was one of the speakers does not disqualify me from saying that it was one of the best I have been to.

I will write separately about the session which I shared with His Honour Judge Simon Brown QC and which was, as you might guess, about the scope which the CPR gives to willing parties and an active judge to bring down the time and costs of e-disclosure.

Nor will I here try and summarise what each speaker said – it would be invidious to pick out any of them in what was a well-balanced programme, Actually, I will make one exception and pick out Browning Marean of DLA Piper US LLP, who displayed his usual knack of giving a near-universal viewpoint which transcends national boundaries and applies equally to large and small cases. It comes down to knowing your stuff and anticipating costs.