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.

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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.

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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.

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