No disclosure in New South Wales Equity Division without exceptional circumstances

September 11, 2012

I have referred before to Practice Note SC EQ 11 in the Equity Division of the Supreme Court of New South Wales. Its key paragraph reads as follows:

The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure.

I refer to it again because I have two panels coming up involving Australian judges. On Wednesday of this week I am at IQPC’s Information Governance and eDiscovery for Financial Services Conference at Canary Wharf, London. My first panel consists of the UK’s Senior Master Whitaker and the Honourable Justice Robert McDougall of the Supreme Court of New South Wales.

Next week, I am at IQPC’s Information Governance and eDiscovery Strategy Exchange in Washington, where I am moderating a large judicial panel (with judges from the US, the UK, Ireland and Australia) which includes the Honourable Justice John Sackar of the Supreme Court of New South Wales. I intend to ask both of them about the Practice Note.

We obviously want to hear how it is working in practice – my understanding is that many, if not most, of the applications made under it have failed either because they were premature or because the applicant did not make a case for “exceptional circumstances”.

I also hope to provoke a discussion with wider implications – whilst it seems unlikely that many other jurisdictions will follow the lead taken by the New South Wales Equity Court, it will be interesting to challenge the opposite idea – that parties must collect and disclose large volumes of documents which no one will ever read, at prohibitive expense.


London conference: Information Governance and eDiscovery for Financial Services on 10-12 September

August 26, 2012

IQPC is running an event called Information Governance and eDiscovery for Financial Services at Canary Wharf between 10 and 12 September 2012.  Recent events in the banking industry suggest that those who work in financial services, and those who advise them, might appreciate an update on the importance of managing and finding electronic information.

The conference begins with a workshop day comprising two sessions which are well worth your time. One, led by Drew Macaulay of First Advantage Litigation Consulting, is called Evidence handling in financial services investigations: tools, tips and traps. The second, led by Sanjay Bhandari of Ernst & Young’s Forensic Technology and eDisclosure Services, is called Conducting an internal investigation: a step-by-step guide for financial services industry Counsel.  Those two sessions alone justify attendance at this event.

There is more, however, in the ensuing two days of the main conference. First Advantage and Ernst & Young lead further sessions and there are contributions on the Navigation of multinational regulatory investigations from Craig Earnshaw and Nick Athanasi of FTI Technology and on Navigating cross-border eDiscovery challenges from Christian Zeunart of Swiss Re.

My own involvement is to facilitate a talk by Professor Dominic Regan with the title 2012: the most significant year in the history of eDiscovery? On past form,  the engaging Dominic Regan is the dream speaker for a moderator, requiring little prompting to explain eloquently why pending changes in the Civil Procedure Rules, amongst other things, force attention on electronic discovery through 2012 and into the pending reforms of 2013.


IQPC Washington Information Governance and eDiscovery Strategy Exchange

August 26, 2012

My next trip to Washington DC (I am there as I write, at ILTA) is for IQPC’s Information Governance and eDiscovery Strategy Exchange which runs from 19 to 21 September at the Marriot Fairview Park. This event is organised by the London-based team which puts on the very successful European eDiscovery conferences, the next of which is in Munich on 27 to 29 November.

As its name implies, this event focuses on strategy. That implies a long-term, proactive and pre-emptive approach to the problems raised by the need to disclose electronic documents for litigation, for regulatory purposes and for internal investigations, and the session titles and speakers reflect this. One of the early panels, for example, is called Closing The Gap Between Legal, IT & Records Management To Ensure An Enterprise-Wide Information Governance & eDiscovery Strategy, to be discussed by, amongst others, Jason Baron, Director of Litigation at the National Archives and Records Administration and Barry Murphy of eDJ Group.

Running my eye down the list of speakers, I see Allison Stanton, Director of e-Discovery in the Civil Division of the DOJ, Mark Yacano of Hudson Legal, David Horrigan of 451 Research, Maura Grossman of Wachtell, Lipton Rosen & Katz, Patrick Oot of the Electronic Discovery Institute and David Shonka of the Federal Trade Commission who will, with many others, cover a wide range of topics both current – the cloud, social media, BYOD and costs – and future with, for example, a panel about technology developments and market consolidation. Read the rest of this entry »

Something for everyone at IQPC’s Information Governance and eDisclosure Summit

May 18, 2012

If you want a rounded account of IQPC’s successful Information Governance and eDisclosure Summit in London this week, this is not the place to find it. I was involved in five events over the three days and spent most of the rest of the time talking to providers, judges, lawyers and in-house eDisclosure people from law firms and their clients, attending very few sessions as a result.

The nearest you will get to a narrative account can be found by looking for the #infoGovSummit hashtag on Twitter and particularly the tweets of Recommind @Recommind,  Barclays’ Matt Ward @_Matthew_Ward_,  and the ever-reliable Andrew Haslam @AndrewHaslam (winner of the event’s tweeting prize).

FTI Technology Panel

It began for me with a workshop led by Craig Earnshaw of FTI Technology at 8:30am on Monday morning. Our subject was When Volumes get Large: How to Keep Control of Your eDisclosure, which was kicked off with talks from Glen Greenland and Ian Smith of FTI and then taken up by a panel comprising Matthew Davis of Hogan Lovells, Jean-Bernard Schmid of the Geneva Public Prosecutor’s Office and me. No eDiscovery exercise, whether for civil litigation, or for an investigation for regulatory, criminal or internal purposes, ever ends up smaller than anticipated.  What resources, of people and technology, do you bring to bear in a way which remains proportionate whilst scaling up to meet new developments?  The subject was deliberately broad, and swept up a range of challenges from pure volume to time constraints to privacy and all the other wrinkles which are recurring features of exercises which are increasingly global in nature.

The most memorable moment had nothing to do with the primary subject – or perhaps it did. Craig Earnshaw asked for the most extreme example of geographical remoteness encountered by the panel. No-one sought to compete with Matt Davis’s reference to Hogan Lovells’ office in Outer Mongolia, neatly emphasising that there are no geographical limits any more.

Dinner with Nuix

A dinner hosted by Nuix on Monday night gave me another example of projects which turn out bigger than anticipated, as well as an object-lesson in the value of actually reading one’s e-mails.   Read the rest of this entry »

Conference topics indicate the important eDiscovery and eDisclosure themes

May 11, 2012

That part of my life which involves speaking has four elements – preparation, travel, delivery and reporting. The month of May always has a full diary of events, and this year has more than usual. Of the four elements, the only one which is optional is the reporting, and it is that which I must abbreviate here. I can make a virtue out of that by summarising the themes which run through my current batch of events, reckoning that the subjects which recur at events are those which are seen as important.

I am writing this from the top floor of the Wynne / Encore hotel in Las Vegas where I have been speaking at AccessData’s User Conference. Below me lies the vast complex of casinos, conference rooms, shops, swimming pools and catering facilities which are the standard mix in this city.  To my left, and  temptingly close, lies McCarran airport with toy aeroplanes taking off and landing. But for the iniquitous cost of today’s flights, I would be there now, getting ready to go home less than 24 hours after arriving here (I could not come earlier because of ILTA Insight in London). As it is, I am stuck here until tomorrow – though as offices go, this one is hard to beat. Away to my right lies the Red Rock Hotel; I will be there in a few days time for Guidance Software’s CEIC. It would be a great deal cheaper, and much more productive in writing terms, to stay here for the intervening few days, but IQPC’s big Information Governance and eDisclosure Summit takes place in London next week and I must be back for that. When CEIC is over, I must get back for a CPD  talk which I am giving in London.

What themes recur through these events? Read the rest of this entry »

Professor Dominic Regan on why the Jackson Reforms mean the biggest-ever upheaval for UK litigation

March 8, 2012

I interviewed Professor Dominic Regan last week about pending developments in UK litigation. Dominic Regan is speaking at IQPC’s Information Governance and eDisclosure Summit, which takes place in London between 14 and 16 May, where I will introduce and moderate the session. In this interview, Dominic Regan foreshadows the major changes which he will talk about at the Summit.

Chris Dale: Hello, I’m Chris Dale of the UK-based eDisclosure Information Project, which carries information about electronic disclosure – electronic discovery as every other jurisdiction calls it – between judges and lawyers and clients and suppliers. I have with me Dominic Regan who is a solicitor, writer, broadcaster, and an adviser to Lord Justice Jackson on cost management, and on the Costs Management pilot. He is also a professor at City University, London. He provides litigation training to a number of Government departments and to many law firms throughout the UK, and hosts webinars, writes, and generally spreads the word about case management and other aspects of litigation. Professor Regan is due to speak at IQPC’s annual Information Governance and eDisclosure Summit, which takes place in London between 14th and 16th May. His subject there is 2012 – The Most Significant Year in the History of eDisclosure? Like Richard Susskind’s book title, The End of Lawyers?, this has a question mark at the end of it. From where I sit I think that 2012 will indeed be the year of disclosure.

We have just seen a significant judicial opinion in the US by Judge Peck in the Da Silva Moore case, which gives judicial blessing to the use of advanced technology known as predictive coding. The UK Courts have just penalised a party in costs for its disclosure failures, which will help focus minds on the risks of inadequate disclosure. The Richard Susskind line – that law firms will see their traditional practices whittled away by what he calls disintermediation, as others offer the components of litigation tasks at lower and more certain costs – is something else that solicitors have to look out for. And we have the Cost Management pilot coming out of Birmingham, and other aspects of Lord Justice Jackson’s proposals, which are now heading into law.

Dominic, let’s start with a very broad question about Lord Justice Jackson’s reforms. How important are they? Read the rest of this entry »

IQPC 2011 Information Retention and eDiscovery Exchange Survey

June 12, 2011

I wrote approvingly of IQPC’s Information Retention and eDiscovery Exchange which took place in Munich towards the end of 2010. I have been involved in some of the discussions about the 2011 equivalent, which will take place at the Kempinski Hotel Airport, Munich from 14 – 16 November 2011. I am very much looking forward to attending this, particularly after the conference which I moderated in Frankfurt last week and the interest and the people I came across there.

In support of the preparations for this event, IQPC has put together a survey for those with a professional interest in eDiscovery and document retention. They make the point, not unreasonably, that they can best produce sessions targeted towards people’s interests and concerns if they know what those are.

The survey can be found here. It should take no more than ten minutes to complete and IQPC will send you the results if you leave your contact details.

The sharp-eyed amongst you will have noticed that this conference takes place in the same week as the Georgetown Law CLE Advanced eDiscovery Institute in Washington. Fortunately, one is from Monday to Wednesday and the other is on Thursday and Friday.


The Gartner Magic Quadrant for EDiscovery Software and other EDiscovery Market Matters

May 31, 2011

As I have often said, I am content to stick to my own part of the e-Disclosure / e-Discovery world and leave others to theirs. Deciphering market trends is the job of analysts; journalists can react quickly to news; the clammy dead hand of the industry press release, with its boilerplate verbiage and breathless hyperbole, can find its way round the world in minutes without any help from me; earnest lawyers can deal with properly foot-noted and referenced reports of cases. My role requires me to pull together such of the threads as will encourage lawyers to make the best use of the rules and of the technology to reconcile their clients’ objectives with the requirements of the courts, helping them to understand just enough of the technology to know what is available and broadly what it does.

May is always a busy time, thanks to IQPC’s information Retention and eDisclosure Management Summit in London and Guidance Software’s Computer Enterprise and Investigations Conference (CEIC) in the US, both of which always take place back to back on opposite sides of the world; one year found me rushing straight from Gatwick to IQPC, where I was caught sleeping through a session – fortunately, not one of my own.

This May has brought in addition the Gartner Magic Quadrant for E-Discovery Software, Autonomy’s acquisition of Iron Mountain’s digital assets and Symantec’s purchase of Clearwell, all on top of Epiq Systems’ acquisition of Encore Discovery Solutions in April. Tens of thousands of words have been written about these things, any one of which would be significant in any month, let alone all of them together. What do they mean for the lawyer, whether in-house or external, who has responsibility for managing electronic disclosure? Is there much to add to what has already been said?

Probably not, but it is worth gathering some of the threads together, using the Gartner Magic Quadrant as a background source. Gartner’s authority in this area needs no endorsement from me, and it is probably not necessary for me to say that I know both the authors, Debra Logan and John Bace. I am, of course connected with many of the names which appear in the Magic Quadrant as well as many who do not. Having pointed you to it, I do not feel the need to mention everyone who appears in it, sticking with those which illustrate some point beyond their bare appearance there. Read the rest of this entry »

UK and US EDisclosure / EDiscovery and Compliance Commonality at IQPC London

May 14, 2011

There was something for everyone at the IQPC Document Retention and EDisclosure Management Summit in London this week. The Bribery Act gave added incentive for those responsible for information management within organisations; at the other end of the process, prosecutors and judges from the US and the UK emphasised that the target is not merely formal compliance with court rules but business objectives and business efficacy; in between, the technology begins to appear – at last – as a tool to support the business and procedural requirements and not, as it used to, as a free-standing objective of its own.

We have also finally eradicated the impression that US judges, providers and practitioners are missionaries come to civilise a backward race. We are all in this together, thanks to four specific facets of globalisation: the need to collect data worldwide and the privacy conflicts which that brings; the fact that the dominating new technology for creation and dissemination of data (of which Twitter and Facebook are but two examples) goes global immediately; the convergence of thinking on court-led procedural matters such as co-operation and proportionality; and now the Bribery Act, matching and exceeding the reach and the implications of the US Foreign Corrupt Practices Act. One US visitor said that she had gone away from a previous conference wondering why she had crossed the Atlantic simply to hear other Americans speak; there are still plenty of them here, but their contribution now brings a world view, not merely a US one, to what has become a much more collegiate group of experts.

As always, I went to relatively few sessions beyond the six in which I took part because I use these events as an opportunity to talk to as many people as possible. I mention this not merely to justify my failure to report comprehensively on the whole conference but to emphasise a hidden value in these events, and an overlooked justification for time taken out of the office. Unclear about some particular technology and whether it its use is likely to be acceptable in a court? Talk to a few people who provide it and then to a judge. Not sure whether your company is ahead or behind others in compliance matters? Have a chat with people who hold parallel roles in other companies. There is much more to these events than one-way communication from the platforms. Read the rest of this entry »

Filling the day and nearly getting filled with lead

April 17, 2011

One of the influential figures in US ediscovery gets very cross at references to the “ediscovery market”, as if the commercial connotations somehow sully the purity of the context of rules and judges and justice which the ediscovery / e-disclosure industry supports. I am pretty keen myself on the “pure” side of it, and more widely than my ediscovery remit, which is why civil liberties and the relationship between rulers and ruled turn up in these pages from time to time.

The “market” side of it, however, is both integral to the delivery of justice and interesting in its own right, both in the delivery of legal services and in the technology which is my own particular concern. What I do touches on several different aspects – business processes, technology, the law itself, and marketing. Periodically, I am asked: “What exactly do you do?”. One of my children, when asked this question recently, said “He writes a blog”, presumably leaving the questioner little the wiser. What I do is, of course, of interest to others only to the extent that it throws light on the market. If I describe my day in London on Thursday, as I am about to do, it is because it touched a lot of industry corners, and not because my own diary is likely to enthrall anyone for its own sake. It nearly included a rather closer interaction between rulers and ruled than I generally look for. Read the rest of this entry »

Phlogging IQPC with Dominic Regan and ipadio

March 2, 2011

Let us deconstruct my title in stages, taking the easy bits first. IQPC is a well-known conference organiser whose Information Retention and E-Disclosure Summit is generally recognised as the best of the London conferences on information management and the use of electronic evidence. It takes place this year between 9 and 12 May. I have just recorded a podcast to promote its benefits, which is what the less familiar words in my heading are about.

IQPC’s Day 1 deals broadly with the information management side, kicking off with a session on US and European regulatory investigations and prosecutions with speakers including Vivian Robinson QC, General Counsel to the Serious Fraud Office, whose talk on the Bribery Act at IQPC in Munich alerted me to the crossover between the Bribery Act defence of “adequate procedures”, and broader information management principles. Another star turn is Damon Greer, Director, US-EU and Swiss Safe Harbor Frameworks at the US Department of Commerce. Day 2 brings us, amongst other things, the US-UK Judicial Panel which serves as an annual stimulus to conjoined Anglo-American thought on the court’s role in managing electronic documents.

I am not going to give you a list of the many thought-leaders from companies, law firms and suppliers because it would simply repeat what you can read in the programme. Take it from me that you will not find a better assembly at any other conference, and book your place while you can. I turn up in the programme from time to time, generally in my preferred role as introducer or moderator. Read the rest of this entry »

Levelling out after LegalTech

February 22, 2011

LegalTech, UK educational sessions and calls from law firms, an LPO conference, Irish eDiscovery, litigation as an invisible export, legal blogging in New York and eDiscovery in Germany all help to pass the time.

By and large, I find that the amount of work which has to be done in a year broadly matches the time available to do it. That is in part thanks to variables which I can control – the things I choose to write about as opposed to those which I must cover, and whether I go to bed at 2.00am or 3.00am – and is explained in part by a variant on Parkinson’s Law. That, you will recall, says that “work expands so as to fill the time available for its completion”. One way of defeating that is to leave important things until the last minute, ticking off the non-urgent things (which would otherwise never get done) so that the time available for completion of the urgent things is reduced. It infuriates conference organisers (for whom everything is apparently needed TODAY) but if I dropped everything to comply with their deadlines, I would never get anything done.

Sometimes, however, tasks stack up like aeroplanes at dawn over Heathrow (an example I pick with particular feeling after my last aimless circling of the Home Counties). February is invariably one of those times, thanks to the cuckoo which is LegalTech. Its three days always take at least two weeks of my life in preparing for sessions, getting there, being there and writing about it afterwards. The result is an uneven spread in my articles – I wrote six in one day just before I left but only two in the ten days after my return. I get bullied, you know. It took a while to do my report on LegalTech and, just before I published it, I received an e-mail saying “I sense some collective thumb-twiddling amongst your readers – the biggest show in town has come and gone and the site is still welcoming Digital Reef etc” (a reference to the last post which I did before I left, about new e-Disclosure Information Project sponsor Digital Reef). It is some consolation to find that Andrew Haslam has only just published his account.

It is worth, occasionally, just running through what is happening, to show how many subjects get swept together under the umbrella of electronic disclosure. It touches on a lot of topics, as the extract below from my slide set shows. I do not disdain PowerPoint, as has become fashionable, and use my slides at educational sessions to allow me to canter over the ground more or less without taking breath – the audience can always ask me back for expansion on discrete subjects.

edisclosure-related subjects Read the rest of this entry »

Twitter, bribery and 37 corporate counsel in a big virtual bar

January 24, 2011

All your highly-polished marketing materials are useless if you do not get them in front of your intended audience and engage with them about it. An article intended merely to point you to a source of messages about the Bribery Act became side tracked – in a good way – into a discussion about the media used to promote it. Dust off that Twitter account which your marketing people opened one Friday afternoon and have been too nervous to use.

You have a specialist subject which is of interest and importance to a wide range of people and which ought to be known to and understood by many more. It is a multi-faceted subject which can be approached from many different directions and is of interest internationally. People, both those already knowledgeable about the subject and those coming new to it, seem to appreciate what you write. You are competent in modern means of disseminating information and views, have plenty of energy and do not mind working seven days a week.

No, this is not about me but about Barry Vitou of Pinsent Masons London who, with Richard Kovalesky QC, uses, to bring news and views on the UK Bribery Act which comes into force shortly. Actually, is it not really about Barry, who in this context merely serves as a hook for some thoughts on using modern media forms to promote ideas and demonstrate expertise. His approach is the same as mine, but I have been looking for an example which will not be confused with my promotion of me – I don’t mind doing that, of course, but it muddies the example if it has that parallel motive.

I have referred to already (see Some resources on the UK Bribery Act 2010). The crossover between e-disclosure / e-discovery and the Bribery Act is obvious (the clue, if you need one, lies in the Bribery Act defence of “adequate procedures”), and Barry and I are jointly presenting a breakfast session with Iron Mountain on 8 March.

I come back to the subject now, partly because you might otherwise miss the stream of useful articles appearing on or linked from its Twitter account, and partly because I met Barry last week at the suggestion of Malcolm Durant of Iron Mountain. We met at Barry’s club, the flavour of which can be gathered from the minimalist rules which seem to come down to “be polite”; the dress code reads “nudity is discouraged” and it positively welcomes both laptops and dogs, all of which make it my kind of place (I once belonged – briefly – to a London club which was so impolite as to send my wife back upstairs – the backstairs, not the one reserved for gentlemen which she had descended – to put on her ball dress for breakfast because women in trousers were banned, as was any evidence of business; I am sure that dogs were no more welcome than women, though you would probably have been allowed in on a horse). Read the rest of this entry »

A reminder about some ediscovery sources plus a mini-conference on video

January 14, 2011

My plan to update the reference section on my website over Christmas was thwarted by the time it took to move from Windows to Office 2011 on the Mac – one of those jobs for which you allocate an hour or two and are still struggling with a week later. That, perhaps, is a story for another day, perhaps under the “awful warnings” section.

While that remains on the “Pending” list, the turn of the year is an opportunity to point to one or two resources which I use to keep me up to date. These are just the ones which come to mind today so please (please!) don’t write in to say I have missed yours.

Twitter has become the top source, mainly because it happens as it happens. There is a big network of thoughtful people out there, and it does not take long to build a list of those worth following – UK readers might perhaps start with the list of people followed by me @chrisdaleoxford, Jonathan Maas @MaasJonathan and Charles Christian @ChristianUncut and pick the ones who tweet abut things which interest you. That deliberately UK-based starting-point will take you a pre-filtered selection of US, Australian and other sources whose tweets have some bearing on UK thinking. You can always UnFollow if we or they do not live up to expectations.

Like some other forms of activity (so I am told), participation is not obligatory – you can get value from just watching. Having caught the flavour of the conversations, however, you might like to join in – we could do some more users (real-life users, I mean, not just experts who happen also to be lawyers in practice). Read the rest of this entry »

Some resources on the UK Bribery Act 2010

December 16, 2010

I mentioned briefly in my report of IQPC in Munich the lucid explanation given by Vivian Robinson QC, General Counsel of the Serious Fraud Office, of the implications of the UK Bribery Act 2010. The aspect which interests me in particular is the defence in paragraph 7 (2) of the Act that a company “had in place adequate procedures designed to prevent persons … from undertaking such conduct”. I suggested in my Munich article that companies who had hitherto felt able to ignore the costs and risks inherent in inadequate information management procedures might like to think again.

I will write more fully about this in due course. I thought it might be helpful for now to collect together some of the resources which have come my way about the Bribery Act and its implications.

Start with the Act itself and with paragraph 7, headed Failure of commercial organisations to prevent bribery, which defines the offence and the “adequate procedures” defence.

An article by Ben Kerschberg in the Huffington Post is called Why corporate counsel must implement stringent corporate anti-corruption policies in 2011. It refers to both the US Foreign Corrupt Practices Act (“FCPA”) and the UK Bribery Act and describes the latter as “the new international gold standard in anti-corruption”. The article also summarises six principles set out by the UK Ministry of Justice in an easily digested form. I have not seen the detail behind this, but Fulbright & Jaworski apparently suggest  that 11% of US respondents believe that the UK Bribery Act will impact the way that companies operate.

The SFO’s own website section on Bribery & Corruption includes a webcast interview with Vivian Robinson.

One of the best sources of constantly updated information about the Bribery Act is a website called maintained by Barry Vitou of Winston & Strawn’s London office and Richard Kovalevsky QC. You can follow them on Twitter as @theBriberyAct and can subscribe to their newsletter from the website.

I am booked to do a breakfast seminar for Iron Mountain with Barry Vitou in mid-February – more details to follow.


IQPC Exchange in Munich: Information Retention and eDiscovery in Europe

December 13, 2010

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

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

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

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

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

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

Premonitions of what was to come

December 8, 2010

I have no idea what is happening in this photograph:

Chris Dale, Steven Whitaker, Denise Backhouse at IQPC Munich

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

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

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


A useful guide to sources on EU Data Privacy Laws

November 8, 2010

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

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

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

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

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


IQPC the best London e-disclosure conference again

May 22, 2010

The three-day IQPC Information Retention and eDisclosure Management Summit is over for another year. It is the biggest and best conference in the London calendar and one which genuinely aspires to do better each year. Everyone I spoke to seemed to think that it had achieved that aspiration.

I have to be careful here. I am on its advisory board and was involved in some of the planning going back to a late-night session in a Brussels hotel bar last October. I also clocked up 8 hours on its platforms this year, so I am perhaps not wholly impartial. It has the greatest concentration of people interested in e-disclosure, from judges to suppliers to lawyers to clients, and is the place to be for someone whose job involves carrying information between these players. My main interest lies in talking to people, which inevitably means that I attend few sessions beyond those in which I am involved. The loss is mine – there was a packed programme of important and interesting subjects and anyone with a stake in electronic disclosure would have benefitted from being there.

Monday was a workshop day. I took part in a three-hour session run by Legal Inc called Ready for the Regulator: the importance of equality of arms. It was led by Vince Neicho of Allen and Overy who, characteristically, had left nothing to chance in our preparation. Bill Sillett, an enforcement officer at the Financial Services Authority, had provided a scenario which was no less plausible for involving almost every aspect of an FSA investigation – what started as an apparently routine matter grew into a multi-jurisdictional one with criminal implications, SEC involvement, and a potential conflict between the company and some of its employees. Antony Montague, Associate General Counsel at McGraw Hill Companies, Matthew Davis, Litigation Support Lawyer at Hogan Lovells, Peter Cladouhos, Practice Support Electronic Discovery Consultant at Paul, Hastings, Janofsky & Walker LLP, and I brought our respective professional inputs to this scenario, with Vince as an able narrator and an audience which caught the spirit of the thing and joined in. If we ran out of time before we run out of script, that was because the audience was sufficiently involved to take us down useful byways. The main take-away for me was the confirmation that the FSA looks well on those who are both willing and able to co-operate at a data level as well as at a higher factual level. Read the rest of this entry »

IQPC: I heard your judges’ panel blew the doors off the joint

May 20, 2010

The quotation in my heading just came in from Gregory Bufithis of The Posse List. The reference is to the judicial panel yesterday at IQPC in London comprising (alphabetically) His Honour Judge Simon Brown QC, US Magistrate Judge John Facciola, Chief Magistrate Judge Paul Grimm, Lord Justice Jackson, Magistrate Judge Elizabeth LaPorte and Senior Master Whitaker. Patrick Burke of Guidance Software moderated and I opened the batting with a short introduction on the importance of international debate and discussion about electronic disclosure / discovery.

We got good feedback at the time, but if the word out there is that the panel “blew the doors off” then that is as good as an endorsement as we could want.

My own account of the event, including that panel, is proceeding slowly, not much aided by all the other things to be crammed into the two days which elapse between that conference and leaving for CEIC in Las Vegas on Saturday, nor by the eight hours I clocked up sitting (or standing) on panels, 4.5 of them yesterday. I stupidly forgot to pass my camera to anyone, so I have no photographs of that panel. Here in the interim is one from the Mock Disclosure Applications which we did at the end (thanks to Nick Pollard of Legal Inc for taking these for me).

Judges Play 1 at IQPC

The picture shows Judges LaPorte, Facciola and Grimm playing a composite judge called Fluffy, me as narrator, Steven Whitaker and Simon Brown as solicitors involved in e-disclosure applications, and Patrick Burke, in this scene as a salesman from The EDD Coalition explaining how two suppliers who hate each other have joined forces, looking and sounding the same in order to get more than 50% of the market – it works for politics, he is saying. Fluffy, the solicitors realise too late, is not a soft touch but a three-headed monster, as they would have realised if they had read Harry Potter and the Philosopher’s Stone.

That was the fun bit at the end of an intensive and extremely interesting three-day conference. My account will appear shortly, and others, I hope, will be covering the sessions (most of which, as usual, I either failed to record because I was in them or missed because I was engaged in useful conversation outside).


A week of change in e-Disclosure as well as in politics

May 16, 2010

It is not often that you look back over a week or so and know that you will always remember it. Eight days ago, we had the same government as we had had for 13 years; now, not only the government but the face of politics has changed for ever. After years with almost no e-disclosure cases at all, two were  reported last week which we will refer to for some time. I have done two sessions with lawyers from which I have emerged confident that the messages are striking home.  At a more mundane level, all next week’s conference sessions now have plans or scripts and the travel arrangements for the next round of conferences are falling into place, or were before ash and strikes threatened. Last Thursday seems a world away. Read the rest of this entry »

Imminent reform in prospect for Australian discovery process

May 14, 2010

Reform of the discovery process in Australia is said to be “imminent”, according to an article in the New Lawyer. The article says that the Attorney General has asked the Australian Law Reform Commission to explore options to promote the early and proportionate exchange of information and evidence in court proceedings with an emphasis on the role of the courts in managing discovery by using their case management powers. My thanks to Simon Price of Recommind for drawing my attention to the article.

The article refers to the experience of international jurisdictions. Those of us concerned with improving the court process are enthusiastic about the exchange of ideas between jurisdictions, particularly where the system of law is similar to ours. Lord Justice Jackson visited Australia as part of his fact-finding tour before writing his Preliminary Report, and we studied the Australian Electronic Technology Practice Note CM 6 when drafting our own new practice direction and Questionnaire. Read the rest of this entry »

Women in eDiscovery at IQPC on 18 May

May 11, 2010

It is not too late to sign up for the women in e-Discovery session at IQPC’s Information Retention and e-Disclosure Summit on Wednesday 18 May. The conference itself runs from Monday 17 May and the Women in eDiscovery session takes place after lunch on the last day.

The session, which is open only to Women in eDiscovery members and is free of charge, will include talks by English and US judges as well as by solution providers. If you are not a member of Women in eDiscovery, it is not too late to join. Contact Laura Kelly.

It is not too late either to attend the whole conference which, as you can see from the programme, has comprehensive coverage of information management (that is, broadly, the things which clients ought to be doing in anticipation of litigation, regulatory investigations or internal enquiries) and electronic disclosure. My article on the Al-Sweady case gives links to a number of other cases which, taken together, make it clear that no one who purports to give advice on litigation can sensibly remain ignorant both of the obligations as they stand and of  pending developments, including the ESI Questionnaire. Read the rest of this entry »

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

May 5, 2010

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

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

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

The 2010 Duke Conference on US Civil Litigation

May 4, 2010

No one with any interest in the US Federal Rules of Civil Procedure could be unaware of the debates which have been going on about the costs of civil litigation and, in particular, of discovery. A conference is being held on May 10 and 11 at Duke Law School, Durham, NC to consider new empirical research by the Federal Judicial Centre and other data and papers prepared by lawyers, judges and academics.

Chief US Magistrate Judge Paul Grimm kindly tipped me off today that the materials for the conference are available on a public website which contains a mass of material relevant to the discussions. Read the rest of this entry »

Plenty to do in an ever busier eDiscovery market

April 22, 2010

It is very flattering when people write in to ask if I am all right because they have noted that the number of blog posts is down in a particular week, suggesting as it does that people do not merely read what I write, but look out for it.  It would, no doubt, be a very pleasant life if I could just sit in my office writing carefully-honed articles but, if that was all I did, I would soon run out of things to say. Furthermore, blog posts are not the only written output, and writing is not the only way of meeting my objective of spreading the word about e-Disclosure.

To allay the suspicions of those who may think that I have taken a week off, it is worth quickly summarising what has been going on. It is useful, periodically, to give some idea of the range of activities which promote the subject, because it shows how much activity there is in the market. Read the rest of this entry »

Peer-to-peer networking at the IQPC Corporate Counsel Exchange in Brussels

April 20, 2010

The night before I left for IQPC’s Corporate Counsel Exchange in Brussels, I gave a short talk at an event organised by 7Safe in London. I will write about that separately, but its theme was that we are seeing a greater rate of change in the UK e-Disclosure world than at any time hitherto, thanks to a combination of procedural initiatives and salutary cases. Change is very much in the air in other areas as well – when I went away, the Liberal Democrats were a joke with no hope of a role in government; by the time I came back, they were a joke with a serious prospect of a role in government. The expression “change is in the air” acquired additional resonance when another minority entity thought to be capable of zero impact managed to bring the entire world to a halt. As the current joke has it, it is cash we want from Iceland, not ash. My wife and I came within a hair’s breadth of falling victim to the latter. Mary Ann, sensibly, took it for granted that we would travel by Eurostar and, in her role as my travel department, and in that no-nonsense way which women have, was poised to make the booking. Wait, said I, in my male, have-we-considered-every-option? way, we should check out the flights. Fortunately, anything that BA had to offer was both more expensive and more inconvenient than the train, even before Iceland intervened.

I was busy down to the moment of leaving home, and had not begun to focus on the implications of the volcano. I assumed that the long queues at the St Pancras Eurostar terminal comprised people keen to get away before the Lib Dems took power (if you think that New Labour loves interfering in our lives, wait till you see what inherent contradictions lie in the two words which make up the name “Liberal Democrat”). Uniquely amongst British public transport ventures, Eurostar just works. Uniquely also, the St Pancras terminal combines aesthetic pleasure with practicality – c.f. the Brussels terminal which has been apparently been designed deliberately to be as ugly and inconvenient as possible, inside and out. Our choice of hotel was another example of the triumph of female instinct over the curious male need to weigh every option. It took Mary Ann about ten minutes to light on the Stanhope Hotel, and a further two hours, at my insistence, for us to examine every alternative and read all the reviews before booking – at the Stanhope.

Incidentally, I just loved the notice on the hotel website offering a “10% kickback on conferences”. I am sure that “discount” was the word they were after, but the subconscious message sent out by using “kickback” just yards from the heart of the EU’s Parliament and bureaucratic centre, was perfect. Read the rest of this entry »

IQPC Corporate Counsel Exchange in Brussels 18 – 20 April

April 12, 2010

I am off to Brussels at the weekend for IQPC’s Corporate Counsel Exchange. The format for this conference is rather different from the conventional series of panel discussions and platform speeches – there are plenty of these, but the primary purpose of the event, as its name implies, is for the exchange of ideas rather than merely their promulgation. The speeches and panels serve as the catalyst for business meetings and round-table discussions.

This format seems to be appreciated both by corporate counsel on the look-out for ideas and answers and for those who have software and service solutions to offer. Amongst the latter are Epiq Systems, Trilantic, Kroll OnTrack, Applied Discovery, Clearwell, LexisNexis and Wolters Kluwer, who should between them cover pretty well all the bases.

I am going to it for various reasons, none of which, for a change, is a speaking commitment. This session which interests me most is a case study led by Greg Wildisen and Mike Brown of Epiq Systems and by Vince Neicho of Allen & Overy. The title is Your company has just been raided and an investigation is under way. Have you an effective strategy to focus your resources on only the most relevant documents? Read the rest of this entry »

US District Judge to Speak on Women in eDiscovery Panel at LegalTech

January 24, 2010

One of the best panels at the Masters Conference in Washington last year was  the Women Thought Leader Panel:  The Art of Negotiating E-Discovery moderated by Caitlin Murphy of CT Summation and including Shawnna Childress of LECG,  co-founder of Women in Discovery. I introduced Shawnna to HHJ Simon Brown QC and she pinned a pink W badge to his lapel, thus making him a member of her gang – a role he has pursued zealously ever since back in the UK,

There have been several good consequences and possible outcomes from that, one of which is that IQPC are running an extended streamed session with Women in eDiscovery at their usually well-attended London information retention conference on 18-19 May, which Judge Brown will address. I will come back to all that in due course.

There is a similar session at LegalTech in New York on Tuesday 2 February. Again moderated by Shawnna Childress, the panel will include Honorable Katharine S. Hayden, U.S. District Judge, US District Court for the District of New Jersey, Maura R. Grossman of  Wachtell, Lipton, Rosen & Katz and Carmen Oveissi Field of Daylight Forensic & Advisory, LLC.

That, alas, overlaps with Stratify’s judicial session, which I will certainly attend because two English judges are taking part, and with a meeting, so I will not be able to attend. If it is as good as the one in Washington, it will be well worth going to.


The e-Disclosure Information Project in 2009 and 2010

December 21, 2009

My e-Disclosure predictions for 2010 are up on the website of the Society for Computers and Law. I have not checked back to my previous years’ SCL predictions, but I think that this batch have much more, and much better-grounded, optimism in them than was the case in previous years.

I will come back in a moment to my own ambitions for 2010, but it is worth first having a quick review of 2009. I wrote about 250 blog posts during the year, bringing the total to 489. There is no easy way of calculating the word-count, but that would add up to a fair-sized book. I was a speaker, panelist or chairman at 12 public conferences in 2009 and attended others. Venues included the US more than once, Brussels, Sydney and Singapore as well as the UK. I got involved in a couple of cases at a strategy level (that has not been the priority for the last couple of years). The rest of the time was spent in meetings or talking about e-Discovery / e-Disclosure in restaurants or bars. Read the rest of this entry »

451 Group reports on IQPC in New York

December 15, 2009

I was not at IQPC’s E-discovery conference in New York last week (see IQPC New York – minimizing risks, costs and challenges). Fortunately the 451 Group’s Katey Wood was there and her report is here.

Two of the points which caught Katey Wood’s eye are of particular interest. One is the session in which Deborah Baron of Autonomy interviewed Karla Wehbe of Bechtel. My article had made the point that client case studies are only interesting if they recount triumph over difficulties. This one seems to have done just that, with sceptical external lawyers now apparently onside and (a much overlooked benefit of in-house control) a proportion of reviewed documents now reusable. My spies tell me that this session was well received – not surprising, perhaps, given the article’s conclusion about “the shifting of roles between e-discovery vendors, service providers, general counsel and law firms as technology moves in-house”.

The other point of interest springs from Katey Wood’s account of the session about collection of international ESI, whose speakers included the well-regarded Denise Backhouse of Morgan Lewis. The sentence about the EU’s fundamental human right to privacy being “literally a foreign concept to those of us accustomed to living under the Patriot Act” is a good way of illustrating how much there is to do to convey to US lawyers that language is not the only thing which is foreign once you cross the Atlantic. Privacy laws and data protection need more than a check-list, as the article says. It would be a good start, however, if the subject did at least appear on the check-lists of those who need to collect data from Europe.

I have yet to see a report about the large judges’ panel at this conference. I will pass it on when I find out what was covered.


IQPC New York – minimizing risks, costs and challenges

December 3, 2009

Minimizing risks, costs and challenges is the title of the IQPC eDiscovery conference taking place in New York from 7 to 9 December 2009. I will not be there, but the agenda offers more opportunities than its title suggests.

I would have gone, for example, to the Judicial Perspectives panel which Patrick Burke of Guidance Software is moderating, with no fewer than six US Magistrate Judges. At the top of the six bullet points which form the agenda is Sedona Cooperation Proclamation – should lawyers cooperate with each other? It would be interesting, would it not, to get a glimpse now of the six hot topics for the agendas for, say, December 2012 or (which is more feasible) to look at old topic listings and compare and contrast them with today’s. When did “co-operation” first make an appearance on the agendas? Patrick is good at spotting what is coming next and, if my own experience on his panels is a guide, will make good use of his army of panellists. Read the rest of this entry »

How IT can support judicial reform? asks Dutch judge Dory Reiling

December 2, 2009

How many judges do you know who might write a PhD thesis with the title Technology for Justice: How Information Technology Can Support Judicial Reform, discuss it on her blog, and promise to inform you of its publication by Twitter. Not many, I suspect.

I met Dory Reiling, or Abeline Dorothea Reiling, Vice President of the Amsterdam District Court, to give her full name and rank, when we sat together on a panel moderated by Patrick Burke of Guidance Software at IQPC’s eDisclosure conference in Brussels at the end of September. I wrote about the session in my post Information Retention at e-Disclosure conference in Brussels. Read the rest of this entry »

Planning the IQPC E-Disclosure Conference for London in May 2010

November 25, 2009

Planning is in hand for IQPC’s May 2010 E-Disclosure conference. Good conferences like this provide elements which other forms of information delivery lack, not least the opportunity to interact with those whose data we write and talk about.

Having got shot of my last urgent deadline a few minutes before midnight on Monday, you would think I deserved a day or two in peace to catch up, but no – duty calls. Just to show how tough life is here, I was forced to spend part of yesterday in a smart restaurant in South Kensington with three agreeable young ladies.

The ladies in question were the team from IQPC responsible for planning IQPC’s Information Retention and E-Disclosure Management Conference for next May – Vanessa Lovatt, Katie Judd and Sarah Johnson. I enjoyed all the conferences I did last year (yes, I have lost count, too) but IQPC was simultaneously the most important and the most enjoyable. It is the biggest one on home territory, it attracts a corporate audience and, last year, it was the venue for the UK-US judicial panel with Guidance Software (since repeated in Washington), and for the performance of the mock e-Disclosure application which I wrote. I am on its advisory board and so get involved in its forward planning – we actually started this at IQPC’s Brussels conference in October but, since that was at 2.30 in the morning and none of us took any notes, it seemed prudent to have a slightly more formal session. Read the rest of this entry »

KPMG survey: Is the legal department ready?

November 25, 2009

Read KPMG’s new survey on corporate readiness for litigation and then read the judgment in Earles v Barclays Bank. You may spot a connection.

KPMG have published the results of the survey which Alex Dunstan-Lee previewed for us at IQPC’s Brussels conference in October.  One of my reports of that event summarised what Alex said. Another of my articles ended thus:

Perhaps the biggest paradox, however, lies in the disparity between the number of people who accept that information management is important and the number who are actually doing anything about it. Coming to a conference like this would be a good start.

That is more or less the theme of KPMG’s report. It is called Is the legal department ready? Managing electronic data for litigation and regulatory readiness. Read the rest of this entry »

Posse List post profiles Project

October 7, 2009

I find myself in the unusual position of being the subject of a blog post rather than the writer. I was interviewed in Brussels last week by Gregory Bufithis of the Posse List which describes itself accurately as “your source for news, commentary and trends in the contract legal market”.

The venue was IQPC’s Brussels eDisclosure Conference, and the resulting post IQPCs Brussels focus: ChrisDale and the e-Disclosure Information Project serves as a better history of the e-Disclosure Information Project than I have written for myself. That matters only because it illustrates how far the electronic discovery world has moved in two years and, in particular, how views and information are being shared around the world. The problems are the same, and no longer merely in jurisdictions with a history of common law discovery. The solutions, and in particular the technology solutions, developed for civil litigation purposes, are readily applied to regulatory investigations and to internal purposes such as fraud investigation. Read the rest of this entry »

Information retention at e-Disclosure conference in Brussels

October 6, 2009

I demonstrated my own commitment to information retention by mislaying my notes of the sessions at IQPC’s Information Retention and E-Disclosure Management Europe Conference in Brussels last week. As with all the best document retention policies, this means that I do not have to wade through masses of information and can focus instead only on that which is important – “important” in this context meaning what I can remember. It is reasonable to assume, perhaps, that the bits I remember are those which mattered most.

Patrick Burke and Judge Peck

Patrick Burke and Judge Peck

We kicked off with a judicial panel moderated by Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software. Patrick is one of the relatively few in the US who “gets” the idea that, however sophisticated the US legal system may be in many respects, those who do business in a multinational context must take notice of jurisdictional differences. Rather too many assume that things are much the same over here if you shout and wave your arms about. Read the rest of this entry »

Learning in good company at IQPC e-Disclosure Conference in Brussels

October 4, 2009

I got back late on Thursday from IQPC’s Information Retention and E-Disclosure Management Europe conference in Brussels. I was on three panels on the first day, attended several others, met or re-met countless people, and yet seemed in retrospect to have spent most of the time eating and drinking. You will forgive me if this post deals with impressions rather than detail.

It is hard to convey how enjoyable these conferences can be. The concentration of raw information and informed comment into two days is not incompatible with having a good time. No one goes just for the pleasurable side, but you do not need to be an information management junkie to enjoy it, whether in the session rooms, in the networking breaks between formal sessions, and in the restaurants and bars afterwards.

Chris Dale at IQPC Brussels

Chris Dale at IQPC Brussels

I will write about some of the sessions separately, and this post is just an overview to give a broad impression for those who have not yet attended one of these conferences. IQPC do them better than most, and months of serious planning goes into them. Of course, if your company has no electronic documents or if your litigation department clients foresee no need to sue, and no risk of being sued or being visited by a regulator, then an e-disclosure conference is not for you. For anyone else, it is a cost-effective way of catching up with what is going on, in pleasant surroundings and congenial company. If part of the appeal is hearing from those who do know about the subject – the legal, practical and technological aspects – another, and under-rated, aspect is the opportunity to mix with those whose knowledge, or lack of it, is no higher than your own. Read the rest of this entry »

Clearing the decks before going to Brussels

September 29, 2009

I do not pretend that this job is hard work in the way that trying to reach a sales target or managing a large project is hard work. It is far too enjoyable for that. It would, however, be good if all these interesting things could be spread out more evenly across the year.

Did I really agree to deliver 10,000 words for a book chapter on digital evidence by 1 October? Did that have to coincide with finishing off two white papers? Why do all the conferences end up bunched together (three conferences in three continents in three weeks starting this week in Brussels)? Are the Twitter eDiscovery lists always so full of interesting stories to follow up, or have I joined in at a particularly interesting point?  I could write ten stories a day entirely from the leads on there alone – but for the book, white papers and the conferences, that is. Read the rest of this entry »

More than one reason for new FTI Paris presence

September 18, 2009

It is interesting to find FTI Consulting, Inc. opening a new forensic and litigation consulting practice in Paris. There is more to this, I suspect, than the economic truism that, for those who can afford it, recession is the best time to expand and to invest against the anticipated upturn.

The press release gives three reasons for opening a new office – to deliver forensic accounting and litigation consulting to FTI’s existing French and French speaking clients, to develop its international arbitration practice in Paris, and to build on its electronic discovery and forensic technology work in France. I imagine that the business case included other and more specific factors such as the increasing incursions by US courts, regulators and government bodies into non-US subsidiaries and sister companies, investigating fraudulent activity either prompted by or exposed by the recession, and increasing activity on the part of EU regulators.

FTI are among the sponsors of IQPC’s Information Retention and E-Disclosure Management Conference in Brussels on 30 September and 1 October. My own specific reason for being there is that Guidance Software, another sponsor of the conference  (and, like FTI, a sponsor of the e-Disclosure Information Project), has asked me to take part in a couple of panels. I would be there anyway this year for the same reasons as are behind FTI’s European expansion. There are still seats available if you want to join us there.


The UK is well-placed between the EU and the rest of the eDiscovery world

September 11, 2009

The first big eDiscovery conference of the autumn is IQPC’s Information Retention and E-Disclosure Management Europe conference in Brussels on 30 September and 1 October. I am going there mainly to take part in a panel organised by Guidance Software involving, amongst others, US Magistrate Judge Andrew Peck of the Southern District of New York, and Senior Master Whitaker of the Queen’s Bench Division, Royal Courts of Justice in London. We are to be joined by three European judges, Judge Abeline Dorothea Reiling, Vice-President of the Amsterdam District Court, Judge Frank Richter of the Supreme Court of Hesse, and Judge Carla Garlatti of the Court of Appeal of Venice.

Although the UK is, perforce, part of mainland Europe for many purposes, one of the (many) differences lies in our respective systems of domestic law. The UK has a common law system very much closer to the US, Australia and Canada than to France, 22 miles away from Dover. The discovery of documents is a common law concept, and one which most of Europe has largely managed to avoid until recently. Read the rest of this entry »

Show me more like this

August 19, 2009

Guidance Software’s new EnCase Portable is interesting enough for itself. The way in which they are promoting it is even more so. The industry as a whole could make use of YouTube’s ability to point users to related material.

I happened to be with Guidance Software on the day that they announced EnCase Portable the new pocket-sized version of their forensic collection application EnCase, at a meeting of their Strategic Advisory Board at CEIC in Orlando in May. We were given a preview of the extremely neat kit — one USB drive containing EnCase and another to hold the data. The ability to put a forensic collection of data into your pocket looks like a proposition which should sell itself.

A couple of weeks earlier, I had written an article called the Untapped potential of YouTube as a promotional medium . The immediate context was the launch that week of a song called What Really Matters to Me by The Phoenix Fall, whose drummer is my son Charlie (it did very well, thank you for asking, and the second one is due out soon). The more important theme of my article, however, was that YouTube offered an instantly accessible promotional vehicle which went far beyond music videos. I raised, but quickly dismissed, the idea that Sir Rupert Jackson might launch his Preliminary Report (which was due out the next day) via a YouTube broadcast, but omitted to mention that Senior Master Whitaker once did a brief YouTube video about e-disclosure. Read the rest of this entry »

The anatomy of practical disclosure and the body of evidence

June 4, 2009

Having not previously opened my doors to guest contributors, I now do so for the second time in a week. Legal Inc, who are amongst the sponsors of the e-Disclosure Information Project, held a workshop with the medical title shown above at IQPC’s  Information Retention and E-Disclosure Management Conference on 19 May. I was in Orlando at CEIC 2009 and asked Andrew Haslam to write it up for me. This is his report: Read the rest of this entry »

Mock e-Disclosure hearing photographs

May 27, 2009

For those who have already seen the post about our mock e-disclosure hearing at IQPC last week, I have now added some photographs to it.

They and others can also be found here. They were all taken by Sonia Perez of Guidance Software.


Making a play to sugar the e-disclosure pill

May 26, 2009

In a previous post (The discovery of disclosure commonality with a trans-Atlantic judicial panel)  I told how IQPC had, at my suggestion,  invited US Magistrate Judge John Facciola and Chief US Magistrate Judge Paul Grimm to come to their Information Retention and E-Discovery Management Conference last week and then asked me how I would like to make use of their talents.

One answer was the trans-Atlantic judicial panel which I described in that post, with Senior Master Whitaker, HHJ Simon Brown QC, Judge Grimm, Judge Facciola and me, moderated by Patrick Burke of Guidance Software. I have long wanted to do a mock e-disclosure hearing and this seemed a perfect opportunity. I saw one a couple of years ago in London in which Judge Facciola played – naturally – a judge. That had aimed at both US and UK procedures simultaneously and had, I thought, fallen between two stools in doing so. I wanted to do one under the English rules. We have had three cases recently – Digicel v Cable & Wireless, Abela v Hammond Suddards and Hedrich v Standard Bank London which had shown the downsides of not following the co-operation obligations under the Practice Direction to Part 31 CPR. Judge Grimm and Judge Facciola have been eloquent in their criticism of those who do not co-operate to reduce costs and who do not display the level of competence required of those who practice litigation. Why not cast them as the judge hearing an application by advocates who fell short of those standards, using facts similar to those of the English cases? Read the rest of this entry »

The discovery of disclosure commonality with a trans-Atlantic judicial panel

May 26, 2009

If I were to define a perfect working day it would go something like this: wake up in a comfortable hotel and take a five minute stroll to Piccadilly; sit on a platform with the two leading US and the two leading UK e-discovery judges and discuss developments in the two jurisdictions; go and see Lord Justice Jackson to discuss the e-disclosure parts of his report; take part in the premiere of your first play, a courtroom drama in which the judges are played by judges and the advocates by people whose life has been spent at the bar; then dine at Rules before going home with the sense, which others seem to share, that the disclosure world has moved on a bit that day.

It sounds all right as a way of passing the time, does it not? So that is what I did on Thursday, on Day 2 of IQPC’s Information Retention and E-Discovery Management Conference. I am but the Boswell to the distinguished set of Dr Johnsons who took part in all this and my main contribution was made months ago. I am on the Advisory Board for the conference, and Sarah Haynes of IQPC rang me up and asked which US judge should be asked to take part in the judicial panel which Guidance Software were intending to run. “Ask Grimm or Facciola” I said, much as one might say “Get Kidman or Jolie” for a film, or “Ask Rooney or Ferdinand” round to play football. Sarah rang back a few days later and said “They are coming – what would you like them to do?” Read the rest of this entry »

Everything and everyone at the IQPC Information Retention and E-Discovery Management Conference

May 23, 2009

I reached IQPC’s Information Retention and E-Discovery Management  Conference 2009 just as the first speaker stood up on Wednesday morning, feeling rather like Phileas Fogg as he burst into the Reform Club with seconds to spare. Although I had not been round the world in 80 days, it felt like it after the 4336 miles overnight from Orlando (see posts here and here as to why I was in Orlando). At least it was warm and sunny in London, unlike damp, dank Florida.

The IQPC e-discovery conference is one of the best in the London calendar, as much for the people one meets there as for the content. At my first, two years ago, I was introduced to three people on one day who have directly contributed to what I do now. Victor Limongelli, now CEO of Guidance Software, gave the first talk I had heard which drew attention to the similarities and differences between US and UK procedure and practice. Master Whitaker spoke rather pessimistically about the difficulties of persuading judges and practitioners that the proper court management of electronic documents was vital to control litigation costs. Mark Surguy of Pinsent Masons talked about the need for lawyers to understand technology and to get to know some providers of software and services who could help them. Read the rest of this entry »

Compliance with the demands of an e-disclosure diary

May 16, 2009

I don’t think I envisaged a peaceful life when I decided to commit all my time to promoting electronic disclosure, but I am not sure either that I foresaw this much activity compressed into a short space. It is just as well that I enjoy it. My original policy never to say no to anything which will get an audience for the subject has had to be modified a bit – double-bookings are difficult, for one thing. Every event involves preparing slides and notes, not just turning up on the day, and the everyday stuff – researching and writing – goes by the board when there is always something happening or about to happen. I would not want it any other way but it would be good to have it better spaced. A summary will have to suffice for now, and the summer promises time to catch up. Read the rest of this entry »

The untapped potential of YouTube as a promotional medium

May 7, 2009

You can launch political policies, bands and brands on YouTube, but perhaps not 1,000 page interim reports on litigation costs. Lord Justice Jackson will do his launch tomorrow with an old-fashioned press conference. Other things, however, bring the marketing and educational value of video to mind.

Lord Justice Jackson’s initial report on the reform of civil litigation costs is due to be launched at a press conference tomorrow, 8 May. There is an article in Times Online today by Neil Rose headed What will the Jackson report say? which summarises some of the things we might expect to see from what is rumoured to be 1,000 pages long – and that is just the interim report.

The article’s most important point comes at the end – this not a government-commissioned report. It was the Master of the Rolls, Sir Anthony Clarke, who asked Sir Rupert Jackson to undertake what was always going to be a vast and important task. The role of judges is central to any planned reforms and, one hopes, something which is immune from political pressures.

I will not be there, unfortunately. I long ago agreed to do an e-disclosure live video presentation for CLT Onlne which goes out at 1.00 tomorrow.  The bare reference in my slides to the Jackson Litigation Costs Review will be outdated by the time I get to it. Read the rest of this entry »

Guidance Software survey for IQPC

May 1, 2009

The Information Retention and e-Disclosure Conference run by IQPC is usually one of the best in the calendar, with a better-than-usual mix of corporate users and information professionals. It take place this year on 20 and 21 May at Le Meridien in Piccadilly. As usual, Day 1 is concerned with information management and Day 2 with litigation and regulatory matters.

I have several levels of interest in this conference. I am on its Advisory Board and have been involved in much of the planning. I am doing two judicial sessions on Day 2, of which I will say more shortly. Several of the sponsors of the e-Disclosure Information Project are taking part, including Guidance Software, FTI Technology, Epiq Systems, Autonomy and Legal Inc. Read the rest of this entry »


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