Washington and New York to Mitchell via privacy, Singapore and Lobachevsky

February 17, 2014

The problem with running a website which offers news and updates is that people notice when it lies silent – the essence of news is that it is new. In fact, I have never aspired to timeliness and, as I say often, if it is important now, it will be important in a month’s time. This post supplements a brief note which I put up last week. Most of it is about Washington and its wonderful memorials, about the week in New York with my panels on eDiscovery technology and privacy, and about the things which got in the way when I got home. That includes some ruminations on the fall-out from Mitchell v NGN, on the unpleasant and economically-illiterate thug who carries the proud title “Lord Chancellor” and his minions at the Ministry of Justice, and on the decline of London’s aspirations to be a forum of choice for international litigants, with side references to Hong Kong (where I go next) and Singapore. There is also a bit about plagiarism illustrated by Tom Lehrer. You get variety here, if not necessarily thematic consistency.

I was at LegalTech in New York, the biggest eDiscovery industry show in the world. This was my eighth LegalTech and I know the form by now – back-to-back meetings, a couple of panels to sit on, five party invitations every night, dinners with varying degrees of learning and entertainment thrown in, and someone to talk to round every corner. This year brought the added element of sudden snowfalls leading to deep pools of slush at every crossing, particularly tiresome when your meetings alternate between the Hilton on one side of Sixth Avenue and the Warwick Hotel on the opposite corner.

Our attempts, some four months earlier, to book hotel rooms were defeated by some sporting event which apparently drew most of the US population into New York for the weekend. The cost of flights to the US falls steeply if you include a Saturday, so we went first to Washington D.C. – “we” being me, my wife Mary Ann and our youngest son William. The weather was fine and, as always, we were drawn first to the war memorials. Read the rest of this entry »

ILTA 2012 Part 5 – Future ILTA events

October 1, 2012

This is the last of my series of articles about the ILTA conference in Washington in August. What else is ILTA doing around the world?

ILTA has recently partnered with ALM, the owners of LegalTech. Apart from LegalTech itself, the next of these events is LegalTech Asia 2013 on March 4-5 at the JW Marriott in Hong Kong. I intend to be there.

ILTA also runs an event in London each year. Called ILTA Insight, this was a deliberately modest one-day event until this year when, again in partnership with ALM, ILTA put on a two-day event – the only one in the UK which attempts to bring eDiscovery / eDisclosure and the other components of legal technology together under one roof. We do not yet have a date for ILTA Insight 2013, but preliminary discussions suggest that it will be an attractive show for exhibitors and delegates alike, and across the whole legal IT field including eDisclosure / eDiscovery.

You do not need to wait until then. Regional Vice President Gareth Ash of Allen & Overy is keen to expand the membership of ILTA in the UK and Europe. As I suggested in an earlier article, if membership has benefits for Allen & Overy, Wragges and Bond Pearce then it has potential benefits for you, whatever the size of your firm. Why not drop Gareth Ash a line?


A UK view of LegalTech from Andrew Haslam

March 8, 2012

Each year, Andrew Haslam of Allvision writes a comprehensive report of LegalTech through the eyes of UK visitors. I say “visitors” in the plural because Andrew solicits contributions and views from others and splices them together.

This year, it seems, contributions and views were not the only thing he picked up from LegalTech – he returned with a debilitating infection which is only now fading away. That may have affected the timing of this report, but has done nothing to lessen its quality. It can be found here.


The Convergence of eDiscovery and Information Governance – the movie

February 29, 2012

I have referred more than once to the webinar which Nuix organised just before LegalTech with the title The Convergence of eDiscovery and Information Governance. I moderated it, and the panel comprised Craig Ball, Attorney and Forensic Technologist, Stephen Stewart, CTO for Nuix and David Cowen, Managing Director for The Cowen Group.

We ran it also as a session at LegalTech, and I did not really focus on the significance of the camera at the front of the audience. We were in fact being filmed, and the result is now on YouTube in four parts – the first is here, and the rest follow automatically.

I referred in opening to a comment made by one of the people who listened to the webinar, who thought that I should have let the speakers say everything they had to say about their subjects. Each of these panel members could comfortably fill an hour on his own and, as I pointed out, we had even less time for the panel session than we had had for the webinar. The only real challenge for a moderator running a panel of this calibre is to bring the session to a close on time and with all the slides covered; that occasionally requires a guillotine.

There was some overlap between the subjects which we covered and a dinner hosted by Nuix the previous evening. I wrote about that in a post called Innovation and informed risk-taking are an eDiscovery duty which defines part at least of my agenda for the coming year. Read the rest of this entry »

Huron eDiscovery Panel at LegalTech as the cross-border climate begins to change

February 20, 2012

My wide-angle lens is being repaired, so I have no photograph of the panel which Nigel Murray of Huron Legal moderated at LegalTech. There were eleven of us at the table for two consecutive sessions with the title A GC’s Nightmare – a US EDiscovery Request into Europe. The first part outlined the problems raised by the EU’s attitude to data protection and privacy and its conflict with US ediscovery requirements; the second part looked at practical ways to deal with the issues which arise. More than 140 people came to one or both sessions.

The panelists were chosen to give a rounded view of the legal and the practical problems from both sides of the Atlantic. Craig Cannon from Bank of America and Carter White of Lummus Technology Inc. represented the ones with the nightmares, the sleepless representatives of major US corporations whose business inevitably takes them into areas – and not just Europe – where US eDiscovery requirements conflict with more restrictive ideas about the use of documents and data. Amor Esteban of Hardy Shook & Bacon and Browning Marean of DLA Piper US offered the view from the US lawyers based in the US, whilst Farrah Pepper, recently moved from Gibson, Dunn & Crutcher to a role as in-house discovery counsel at GE had both viewpoints to offer. Natascha Gerlach is an attorney at Clearly Gottlieb in Brussels and she and Vince Neicho of Allen & Overy in London had the hands-on view from the European end. US Magistrate Judge Frank Maas of SDNY and Senior Master Steven Whitaker from the High Court in London gave the viewpoint of judges who deal with either end of the relevant requests. My role was to talk on the theme “How others see us” and to cover information governance. Nigel Murray was his usual urbane self, the conductor of an international choir whose singers were not guaranteed to sing to any pre-conceived score (there wasn’t one), but whose contributions covered every aspect of the problem.

With 300 words down just to say who was there, it would be foolish of me to try and summarise what each panelist said. Quite apart from anything else, whilst we had each chosen or been given our defined topics, there was no published running order. This allowed Nigel to follow themes as they developed, but since none of us knew who was going to be called next, this scribe had no realistic chance of capturing the contributions as they emerged – try doing this when you are on a panel, and you end up missing your own cue, conscious, perhaps, that you have just been asked a question in front of 140 people but with no idea what it was. Read the rest of this entry »

Taking stock of the eDiscovery world

February 15, 2012

This is a good moment to pause a little and look around the eDiscovery / eDisclosure world.  The wide range of topics which make this such an interesting field are all getting an airing at once. The stream of useful and relevant tweets is such that I had to turn it off to get anything done. If it appears to have a largely US flavour, much of it also has relevance in the UK and elsewhere.

I do not feel under any particular pressure to capture it all as it happens, and there are back-room things – the agendas for three forthcoming UK conferences and a White Paper, for example – which have some priority in terms of time allocation than the news stream which, if its elements are of importance at all, will still be so in a week’s time.  My web site also needs some attention to logos and indexes. It is helpful, nevertheless, to list some of the pending stories, if only to head off polite suggestions that I may have missed them. Since the point here is speed, I will ignore my usual rule about hyperlinking to everything referred to.

My involvement in or attendance at some recent events will be covered shortly. Monique Altheim has released videos of the eDiscovery sessions we did at CPDP in Brussels.  Nuix hosted a thought-provoking dinner at LegalTech which stimulated thought about the real meaning of “innovation” in eDiscovery.  It has been said of the cross-border panels hosted at LegalTech by Huron Legal and led by Nigel Murray that “the substantive information conveyed was top shelf” and there is talk of a re-run. Data protection and privacy move back up the agenda anyway thanks to the draft EU data protection regulation. Read the rest of this entry »

Setting the scene after LegalTech 2012

February 9, 2012

Well, who would have thought that the big topic of conversation at LegalTech would be the weather? Keen though I am to import British ideas into US eDiscovery, the near-obsessive British focus on temperature and precipitation can stay at home. The subject came up thanks to the contrast between the balminess of this New York January compared with last year, when we needed snowshoes and crampons to cross 6th Avenue. Getting back to the UK was a different matter weather-wise, but we will come back to that.

The other generic ice-breaker at LegalTech is “Have you seen anything new here?”. None of us can actually remember ever seeing anything truly “new” at LegalTech, at least by the standards of an industry which produces ever more interesting and sophisticated technology throughout each year. The bar is set very high, and the question is the industry equivalent of the conventional enquiry after one’s health.

The problem – my particular problem, anyway – is illustrated by the legal IT PR who wrote to me as the show closed to ensure that I had all the information I needed for the article I might write about her client. What do you suggest I do, lady? Write about everything? Type out a big list of all the companies and people I saw and call it an article? Pick out some and ignore others on some subjective or arbitrary basis? I did in fact write about some of the new developments before LegalTech, mainly on my Google Plus site, and will pick up some more in due course, mainly by pointers to good summaries by others. My main purpose in going to LegalTech, apart from participation in a couple of panels, is to meet people.

At a conference last year, I overheard one person asking another about the best way to meet people at conferences. The answer given was “Follow Chris Dale around”. That is more than a little exaggerated, but I pass it on because its implication broadly defines what I do in between the formal events – I meet up with people, largely by serendipity, and find out far more than I would in the (necessarily fewer) formal meetings which require fixed time slots. As I say, I will point you in due course to some of the more structured accounts of LegalTech 2012, but for now I merely invite you to “follow me around” on what is largely a personal account of the show, though by no means a comprehensive one. This article is general in nature; I will write separately about the panels and other structured elements of the show. Read the rest of this entry »

Aggressive Transparency and Strategic Cooperation in Electronic Disclosure

March 16, 2011

Lieutenant Schrank: You hoodlums don’t own these streets. And I’ve had all the rough-house I can put up with around here. You want to kill each other? Kill each other, but you ain’t gonna do it on my beat. … So that means you’re gonna start makin’ nice with the PRs [Puerto Ricans] from now on. I said nice – GET IT! ‘Cause if you don’t, and I catch any of ya doing any more brawlin’ in my territory, I’m gonna personally beat the living crud out of each and every one of yas and see that you go to the can and rot there.

Riff: Now, protocality calls for a war council between us and the Sharks, to set the whole thing up. So I would personally give the bad news to Bernardo.
Gee-Tar: Where you gonna find Bernardo?

Baby John: It ain’t safe to go into PR territory.

Riff: He’ll be at the dance tonight at the gym.

A-rab: Yeah, but the gym’s neutral territory.

Riff: A-rab. I’m gonna make nice with him! I’m only gonna challenge him.

You will recognise the lines from West Side Story. They are clearly a parable – Schrank is the judge and Riff is preparing for a case management conference with Bernardo, as protocality (otherwise known as the Practice Direction) requires. Can you “make nice” with your opponent and yet challenge him?

In my account of LegalTech, I mentioned a panel led by Laura Kibbe of Epiq Systems whose participants included the UK’s Senior Master Whitaker, US Magistrate Judge Andrew Peck and ediscovery specialist partner David Kessler from Fulbright and Jaworski. I said this of it:

An animated discussion arose during this session about the conflict between co-operation to minimise over-disclosure (on the one hand) and the risk of showing more of your hand than you intend (on the other) with the judges in one corner and the terrier litigator David Kessler of Fulbright & Jaworski in the other. The discussion deserves more space than I can give it here, and I will come back to this.

The principles at issue here apply equally in a US and a UK context. The UK 1999 Civil Procedure Rules were founded expressly on a “cards on the table” approach, and the co-operation duty is both implicit and expressed in the e-disclosure Practice Direction 31B. Rule 26 (f) of The US Federal Rules of Civil Procedure is its parallel. Many lawyers on both sides of the Atlantic find it counter-intuitive (read “treacherous”) to have any co-operative discussions at all. My favourite judicial quotation in this context is the one which says that “co-operation is not all sitting round the camp-fire singing Kumbaya”. Browning Marean of DLA Piper US captures the same spirit with two neat phrases “strategic cooperation” and “aggressive transparency”.

Although I look at this subject with a bias towards the UK rules in this post, much of what arises transcends jurisdictional differences. My premise is that we can only manage electronic disclosure proportionately (meaning, in this context, at a price the clients are willing and able to pay) if we require or persuade the lawyers to try and reach agreement on the scope of disclosure/discovery. Litigation is inherently a contentious process but we need, where possible, to separate the fighting over the facts and issues from the mechanics of disclosure. I include the words “where possible” because it has to be recognised that there are cases where the parties are never going to agree about anything and where the costs seem to them to be irrelevant. It is for the court to manage that, and to punish those who use the disclosure obligations as a weapon. 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 »

New web sites and a case study make good marketing

January 27, 2011

Although the nuts and bolts of what I do involves e-discovery / e-disclosure rules and the crossover between rules and practice on the one hand and technology on the other, my real interest lies in marketing, with a self imposed brief to market the concepts and benefits of ediscovery / e-disclosure as well as those who provide services. My biggest article in the last few days (see Twitter, bribery and 37 corporate counsel in a virtual bar ) has been about that rather than about either rules or technology.

I have always had a soft spot for the blog maintained by forensics experts CY4OR because they provide automatic links to my own blog posts. They never sought my permission to do this, nor did I ask them to, but I certainly don’t complain at this unsolicited outlet for what I write.

I have had no cause to look there recently, but a couple of recent tweets have taken me to CY4OR sites – it would be interesting, would it not, to get them to track how many of the visits to their sites came from those tweets?

The first tweet took me to CY4OR’s new e-disclosure site which shows how far CY4OR has moved from its roots as a pure forensic expert. It has partnerships with Clearwell and Nuix to add a processing capability to the stage which follows the collection. I am obviously interested in the mere fact of those partnerships, since both Nuix and Clearwell are sponsors of the e-Disclosure Information Project.

My other interest, however, lies in how well a web site guides a potential client through the range of services on offer – the alliances of skills and partnerships make perfect sense to those familiar with what these products do and how they fit into the process, but it is not so easy for those coming new to e-disclosure. I judge a web site by the ease with which an e-disclosure virgin could find out what services are on offer and how a provider can help. Read the rest of this entry »

The Trilantic Commonwealth Brunch on Sunday at LegalTech

January 18, 2011

The invitations to parties, receptions and meetings at LegalTech New York continue to roll in – my personal best so far is four assignations on one evening. The biggest issue, so far as I am concerned, is not fitting them all in, but getting them recorded accurately in a calendar which does not recognise the concept of time zones. My recent move to Apple’s products reveals an unexpected limitation – Microsoft Outlook 2011 for Mac lacks the useful function in Outlook for Windows which allows you to set up parallel time zones.

Four options emerged during a recent discussion on Twitter: a) look up the local time on www.timeanddate.com and use that, hoping that you transfer it accurately and that everything falls into place when you adjust your devices’ time zones; b) enter events twice and include the local time as part of the description to give you a clue if neither makes sense when you get there; c) buy a watch and leave all your devices (I have four) at UK time, entering appointments as if the time difference did not exist; d) buy a stout diary and a pencil (the suggestion made by Charles Christian, editor of the Orange Rag and American Legal Technology Insider, and a long-time Mac user). There is a fifth option, I suppose – I could revert to the PC, but I invested far too much of Christmas in the changeover to contemplate that. The final option involves a trip to California and an act of violence upon the insular geek who failed to deal with time zones in his pretty but defective software.

One event which I will not forget, not least because it happens at the same time every year, is Trilantic’s Commonwealth Brunch at 10.30am on Sunday. This used to be a sedate affair called the British Brunch. Last year, for the first time, it became the Commonwealth Brunch, reflecting the widening scope of Trilantic’s work and the increasing connections between the non-US common law jurisdictions. Last year’s Brunch was attended by people from Australia, India and Canada amongst other places, as well as by one or two US people with tenuous claims to Commonwealth ancestry. I have the impression that we will see many more Australian and Canadian people this year – both places are seeing interesting developments in ediscovery.

Trilantic is, of course, now part of Huron Consulting Group, and we can expect a yet wider catchment area as a result. Nigel Murray is always a genial host, and this is a good way to launch the week.

Laura Kelly is co-ordinating the event. Contact her if you think you are qualified to attend.


Strong UK presence at LegalTech 2011

January 10, 2011

LegalTech 2011 is only a few days away and the programme is packed. Almost everyone whose name has appeared in these pages is taking part in something, and I will not attempt to list them all. Following on, however, from my recent piece about the Georgetown Advanced e-Discovery Institute (see International discovery, sanctions, ethics and US-UK comparisons at Georgetown) and the growing mutual interest in US e-Discovery and UK e-Disclosure, I thought it worth drawing your attention to the sessions involving UK participants. If I have missed any, please let me know.

Epiq Systems have two panels involving well-known UK participants. Greg Wildisen of Epiq moderates a panel called Navigating the Challenges of Cross-Border Regulatory Investigations with panelists including Professor Dominic Regan and David Cracknell of Slaughter and May’s London office. That is followed by a panel called Managing a Global Review while Minimising Risk moderated by Laura Kibbe of Epiq. The panelists include Senior Master Whitaker and Neil Mirchandani of Hogan Lovells in London. Non-UK participants known to readers of this blog include US Magistrate Judge Andrew Peck (who has teamed up with Master Whitaker in various jurisdictions, including Brussels and Hong Kong), and David Kessler who has recently moved to become Co-Head of E-Discovery at Fulbright & Jaworski – an entertaining and informative fellow, David, as I discovered to my relief when he was on a LegalTech panel which I moderated for Epiq last year (I say “relief” because it can be an interesting business, moderating panels of people you have never met before). Anyone interested in global and cross-border matters should attend these sessions.

Andrew Szczech of Kroll OnTrack UK takes part in a panel called Trends in Social Media and Cloud Computing. Jan Durant, IT Director of Lewis Silkin is on a panel called Business Processes Utilising SharePoint. Alex Dunstan-Lee of KPMG in London is doing a session called The Clearwell E-Discovery Platform: did you know? UK solicitor Mark Ross, VP legal solutions at Integreon, is covering Legal Process Outsourcing: Ethical, Practical and Legislative Considerations.

Apart from the UK, the non-US world is represented by Michelle Mahoney, Director of Applied Legal Technology at Mallesons Stephen Jaques in Australia, talking about the Intersection of Project Management and Practice Support. She was anointed Practice Management Champion at ILTA last year, so knows what she is talking about. Read the rest of this entry »

LegalTech 2010: Andrew Haslam reports for the Orange Rag and the 451 Group delivers market analysis

February 23, 2010

My unspoken deal with Andrew Haslam of Allvision after LegalTech each year is that I will write a heavyweight report on the business trends for the ensuing year, and will also write an anecdotal local colour story designed to convey what this show is like to those who have not been there. That leaves Andrew the hard factual stuff about products which he and his army of contributors saw at the show, together with a critique (as opposed to my mere description) of the show itself.

See Andrew Haslam gives his verdict on LegalTech NYC on Charles Christian’s Orange Rag. Read the rest of this entry »

Defensible document review – Epiq Systems panel at LegalTech

February 18, 2010

As is increasingly the case, The Posse List is getting out its reports of events and developments so quickly and comprehensively that it is folly on my part to cover them as well. This suits me well, since I am far from short of topics of my own, and I can extend my range by drawing your attention to Posse List reports. This is particularly helpful where I was not present, as was the case at the opening panel organised by Epiq Systems on Day 2 of LegalTech 2010. I was in fact outside, doing the final preparations for the second panel, which I was moderating, and about which I will write separately.

The subject of the first panel, and the heading to The Posse List’s article, was Defensible document review. Epiq is primarily thought of as a software company because of the respected and widely-used review application DocuMatrix. In the US particularly, however, they are known also for a document review service. The panel was led by Laura Kibbe and the panelists included our own Vince Neicho, who knows a thing or two about document review from his position as Litigation Support Specialist at Allen & Overy, and David Kessler , a partner at Drinker Biddle. David proved a lively panelist on my panel as well. Read the rest of this entry »

Applied Discovery joins the Project’s sponsors

February 16, 2010

I will do a proper welcome post shortly, and this is just a brief note to welcome Applied Discovery to the ranks of the sponsors of the e-Disclosure Information Project.

I wrote about the company recently (see Applied Discovery gets new marketing wind behind it) and met up with them in London and at LegalTech in New York. Several things are attractive about them, both as players in the market and as sponsors, but if I were to isolate two, they are their commitment to eDiscovery education and their growing strength in Canada – a country which, like the UK (and Australia and Singapore) has been developing the rules for handling electronic documents.

It will be good to have reason to look more closely at what is happening in Canada – the only one of the countries mentioned above which I did not visit in 2009.

As I say, a fuller post will follow about Applied Discovery shortly. It is good to have them aboard.


Deborah Baron summarises the Autonomy Cloud message on video

February 16, 2010

I am a strong believer in the idea that businesses, and particularly technology businesses, need to make use of every medium which is available to get messages across to potential users. The new media formats such as Twitter, blogs, Facebook and video come at litigation support companies from two directions – they are simultaneously a medium for the distribution of information and a source of potentially discoverable information. Just as it becomes increasingly challenging to keep pace with the volumes to be collected, so it becomes harder to be heard as the means of instant worldwide publication become available to everybody.

That well-worn communications device, the press release, has many advantages. Companies can fine-tune the message, reduce it to the fewest possible words, and distribute it to a mailing list of recipients who will pass it on. Modern technology has multiplied the methods of distribution but the format remains the same as it did in the days when PRs were sent out in the post. The bigger the company, the more likely it is that there is a corporate style for press releases. Read the rest of this entry »

Distinguishing discussion from lecture at LegalTech

February 13, 2010

I go back over my recent posts a day or two after publishing them, partly to pick up typos to which one is blind when they are newly typed, but mainly to check that what I said is what I meant and is not capable of other meanings.

I have just come across one which has the capacity to offend anyone who has ever shown me a PowerPoint presentation, because what it appeared to say was that I hated the whole approach. I do not. I use PowerPoint myself – I may resent the obligation to produce the slides, but I value the structure they impose, the ability to illustrate dull words with other things where appropriate, and (from my perspective as a speaker) the freedom they give from paper notes.

I appreciate them also as an aid to the kind of dialogue I am lucky enough to have from time to time when someone senior in a company takes the trouble to explain what lies behind the press releases. I have had a few sessions like that recently, and very good some of them have been. A passage which I have now deleted from a recent post appeared to denigrate the lot. Read the rest of this entry »

Mixing eDiscovery business with pleasure at LegalTech 2010

February 11, 2010

I write each February after LegalTech in New York to try and convey how this event is simultaneously hard work and good fun. Certain times and cultures are inherently suspicious of the idea that you can enjoy yourself whilst working, and this may be one of those times. I stand, however, by my usual proposition to the effect that anyone whose work involves the management of electronic documents for litigation etc, whether as lawyer, judge, client, supplier or consultant, should be there, and that their attendance will be repaid by the knowledge and information which they acquire. That knowledge and information is gained equally by going to sessions, seeing applications, and talking to people, whether in formal meetings, in chance encounters in corridors, or in the bar.

This is the more true in a year when one of the themes is collaboration and cooperation. That collaboration is needed between lawyers and their clients, and between suppliers and those who instruct them; it operates at a business process level and at a technical level, and it extends, by virtue of common sense as well as the rules, into cooperation between lawyers on opposing sides. If you must collaborate with people then it makes sense to know something about them, and the shared experience of LegalTech is the best place to mix professional relationships with the personal ones which are the oil in two figurative senses – the oil in the machinery which keeps the processes running, and the oil on what are occasionally troubled waters. If you know the people, the processes run better and the difficulties are more easily sorted out. Read the rest of this entry »

CaseCentral CARtoon – what drives Toyota’s eDiscovery purchasing strategy

February 8, 2010

CaseCentral’s Case in Point cartoon series maintains its quality with this week’s one in which Toyota explains what drives its eDiscovery purchasing strategy.

CaseCentral - Toyota's eDiscovery StrategyI spotted a judge at LegalTech wearing a No Processing badge which emanated (anonymously) from CaseCentral.  Full marks for the marketing.


BA misses the bus – how to lose goodwill at the end of the project

February 8, 2010

The customers remember best what happens last, whether you are running an e-Discovery project for them or flying them across the Atlantic. It seems a shame to do it all so well and then screw up at the end.

I am generally fond of British Airways. I like to see its colours in remote corners of the world; I appreciate its treatment of frequent flyers; its planes seem to take off at more or less the right time and land in the right place. What a pity, then, that my otherwise faultless flight from New York on Saturday ended in my being trapped on the plane because no one had thought to provide the buses to take us off.

They could not have been more helpful in New York, even volunteering to move us to an earlier plane to get us out before the snow. We don’t expect real food. It was a bumpy ride, but the cabin staff were efficiently good-humoured and we arrived at Heathrow on time notwithstanding the conditions. There, however, the process and my goodwill ran out simultaneously. Read the rest of this entry »

Some statistics from Equivio>Relevance

January 29, 2010

I have recently written a white paper about Equivio>Relevance and was subsequently interviewed about it by Metropolitan Corporate Counsel – both if these can be found on Equivio’s publications page.

A recent article by Marisa Peacock on CMSWire called Equivio makes Early Case Assessment more relevant adds some diagrams to illustrate the statistics which I mentioned in my paper. One shows the increase in the number of relevant documents found by Equivio>Relevance compared with a review team, and the other shows the rate at which the bulk of those responsive documents was found. The point of the latter, if that is not clear, is that if more of the relevant documents are found earlier in the process, the sooner the lawyers get to see the ones which matter. Read the rest of this entry »

7Safe launches UK Security Breach Investigations Report 2010

January 29, 2010

Mysterious messages have been appearing on Twitter all week like “In 85% of data breach cases, payment card information was stolen”. They all lead back to an analysis of data compromise cases over an 18 month period which 7Safe have published in conjunction with the University of Bedfordshire, supported by SOCA (Serious & Organised Crime Agency) and the Metropolitan Police Service. It is called the 2010 UK Securty Breach Invesigations Report.

7Safe’s Alan Phillips has been busy with a blog which now includes, in addition to written comment, some videos and photographs (including one of me, I see, now I look closely). I have not had the chance to look at the videos yet, but I am, as you know, keen to see all kinds of media pressed into service as marketing tools, whether of the wider concepts of edisclosure or for particular suppliers.

Alan Phillips will be at LegalTech along with Jim Kent and Adam Page of  7Safe, not so much on the subject of security breaches, but because of the company’s role as hosting provider of Anacomp’s review platform CaseLogistix.


FTI Technology 2009 IDC Survey defines the eDiscovery challenges

January 29, 2010

FTI Technology will be out in force at LegalTech, as you would expect from a  company whose range of products and services cover the full range of eDiscovery problems and solutions.

They commissioned an IDC survey which was published in 2009 and whose findings included the following:

  • Multinational litigation is growing more common. Close to 70% of panelists indicated that their companies are involved in legal matters with multinational requirements.
  • Most large matters take more than two years to resolve. 64% of respondents said their largest matter took over two years to resolve, and 35% indicated that their largest matter lasted for more than five years.
  • Data collection volumes are growing. The proportion of panelists whose average ESI collection per matter was larger than 2.5TB increased 18 points from 19% of panelists in the 2008 study to 37% of panelists in the 2009 study.
  • E-discovery budgets are flat or decreasing. 36% of respondents said their budgets were flat and 42% said their e-discovery budgets were declining.

If none of this is surprising, it is helpful to have it backed by some statistics. Read the rest of this entry »

Anacomp e-Discovery panel at LegalTech – emerging technology and a defensible process

January 29, 2010

Anacomp are running a panel in the New York suite at the Hilton on Tuesday 2 February at 10:30 AM. I will not, unfortunately, be there, because I am on another platform at the same time.

The title is What’s next: emerging technology and a defensible process in 2010 and beyond  and it is to be moderated by Jeff Friedman of Anacomp with panellists including:

  • Chuck Kellner, Vice President Consulting for eDiscovery of Anacomp
  • Michael Shannon, CIO of Dechert LLP
  • David Baldwin, Litigation Support Manager of Choate Hall & Stewart LLP.

The session led by Chuck Kellner at the Masters Conference was one of the most interesting ones there, with its focus very much on practical issues. Anacomp is a consulting business as well as the software company behind the review platform CaseLogistix. With a technology provider, an information officer and a litigation support manager on the panel, we can expect input covering every angle.


Stratify eDiscovery Super Session panels at LegalTech

January 29, 2010

I have already mentioned one of the four panels which Stratify is running on Tuesday, 2 February in the Sutton Parlor Center Room at the Hilton in New York. The sessions are as follows:

  • 8.30 Can we have our cake and eat it, too?  Cooperation vs. zealous advocacy
  • 10.15 How much justice can we afford? Rescuing civil justice from the costs of eDiscovery
  • 12.45 Is the tail wagging the dog? Winning on the law instead of winning on eDiscovery
  • 2.30 The Good, the Bad, and the Ugly? International judges panel comparing different legal systems and eDiscovery approaches Read the rest of this entry »

Epiq Systems e-Discovery Super Sessions at LegalTech

January 29, 2010

Epiq Systems are running three panels on Tuesday, 2 February at LegalTech. They take place in Concourse G at the Hilton New York as follows:

  • 9:00 Achieving a Cost Efficient, Defensible Document Review
  • 10:00 Best Practices for Successful Multinational E-Discovery
  • 11:00 Implementing and Using Joint Repositories

The full list is here.

I am the moderator of the panel Best Practices for Successful Multinational E-Discovery which comprises a mixture of people I know well and those whom I do not know at all. They are:

  • Kirby Behre, Partner, Paul Hastings Janofsky & Walker LLP
  • David Kessler, Partner, Drinker Biddle & Reath LLP
  • Browning Marean, Senior Counsel, DLA Piper US LLP
  • Steven Whitaker, Senior Master of the Senior Courts of England and Wales
  • Greg Wildisen, International Managing Director, Epiq Systems

I do not anticipate that we will run short of things to say, not least because the decision in AccessData v Alste (see my post about it )  has brought back onto the agenda the continuing conflict between US data collection requirements and EU data protection laws. Since one of our number, Senior Master Whitaker, is responsible for Hague Convention matters for England and Wales, we can expect a lot of interest in this session.


Autonomy eDiscovery Appliance – chaining law firms and clients together

January 28, 2010

A series of announcements from Autonomy coincide with what I see as the coming developments in the UK and elsewhere, enabling the lawyers to work collaboratively with clients.

As one would expect, Autonomy has come up with a series of announcements in advance of LegalTech. One of them is about the large number of awards – six in all – which they are to be given by Law Technology News on LegalTech’s opening Monday evening.

The others are about three product launches – DSMail , a self-service archiving solution for email management, governance and ediscovery, iManage ConflictsManager, which enables law firms to streamline the management of their conflicts of interest process, and the Autonomy eDiscovery Appliance which combines early case assessment (ECA) and legal hold capabilities. Read the rest of this entry »

Remember ESTA before embarking for LegalTech

January 26, 2010

Those from the UK who were confined to barracks last year and unable to go to LegalTech may be glad of a reminder that one must now apply in advance under the Visa Waiver Program via ESTA, the Electronic System for Travel Authorization.

The link above is direct to the official site – there are several sites which look “official” but which offer a service whose value is hard to discern. If you have internet access you can complete the form yourself, and if you do not you won’t see the sites anyway. Read the rest of this entry »

Seeing Nuix at LegalTech

January 25, 2010

I try to avoid spending too much time at LegalTech looking at applications. I am much more interested in talking and listening to people, and three days is just not long enough to fit everything in. I generally limit my viewing to those whom I know or those who have something particularly new or exciting to offer, particularly if relevant to the UK market. Inevitably, they all think that their latest addition to functionality is both new AND exciting, and all reckon that their new release is just what the UK needs, including some who could not find the UK on an atlas.

I will go and see Nuix 3, however, partly for its own sake and partly to catch up with Nuix CEO Eddie Sheehy whom I met in Sydney at last year’s Ark Group conference there – one of those people who pours out ideas and enthusiasm in a way which, I suspect, would-be buyers find both infectious and persuasive. Read the rest of this entry »

US claims Global Power to Access Data despite EU data protection laws

January 25, 2010

Another decision of a US court shows the supremacy of the US courts over EU laws, at least as seen from the US. It doubtless plays well in Utah, but is probably bad news for US evidence-collection in the long term.

Before I begin, it would be kind to explain my title for those who are not au fait with recent US cases on data collection in Europe and with the claimed supremacy of the Federal Rules of Civil Procedure over EU data protection laws. In ordinary parlance, a “global power” is what the USA sees itself as. Nobody argues with that although, as events unfold before the Chilcot Inquiry into the decision to join America in the Iraq war, we do not share Tony Blair’s view that our relative status requires us to yap support like a sycophantic poodle whenever America condescends to speak to us. Access to data needs no explanation but, curiously, gives rise to much the same feeling in Europe vis à vis the US. By chance, the two most recent cases involving the claimed supremacy of American courts over trifling matters like EU data protection law are called, respectively, In Re Global Power Equipment Group, Inc and AccessData v Alste (see as to the first of these cases a helpful article by Morgan Lewis called French Blocking Statute still gets no respect from US court). 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.


Catching up with the new Ontario E-Discovery Rules of Civil Procedure

January 23, 2010

I missed the new Ontario E-Discovery Rules of Civil Procedure which came into effect on 1 January. By “missed”, I mean that I knew about them but decided that it was a topic important enough to be put on one side until I had time to review them properly. That is not going to be this week, so instead I refer you to the thoughtful and well-hyperlinked commentary Ontario Rules of Civil procedure on e-Discovery come into effect by Ledjit whose Dominic Jaar I hope to see at LegalTech. Read the rest of this entry »

Guidance Software launches EnCase eDiscovery 4 with help from Twitter and YouTube

January 22, 2010

Guidance Software has released EnCase E-Discovery 4, which offers a pre-collection analytics capability as well as the ability to analyse and review ESI throughout the key discovery processes – during a legal hold, during forensic data collection, post- collection, during and after processing and on into first-pass review. This brings all these phases within the reach of an in-house team – and since that seems to be the way the world is going, the release is timely.

Guidance Software is getting good at using alternative forms of media to get information out to the world – I wrote approvingly about a video on EnCase Portable (see Show me more like this) last August because it showed a hands-on guy getting his hands on an application and showing us how to use it. Read the rest of this entry »

Between the rock of Jackson and the hard place of LegalTech

January 22, 2010

Once a decade, we get a large and influential report on Civil Procedure in the Courts of England & Wales. Once a year, the largest and most important e-discovery conference takes place in New York. Did they have to take place within a few days of each other?

In mid-September 1066, Harold Hardraada of Norway pitched up on the Yorkshire coast with an invading army. The English King Harold set off from London with his army and smashed the invading forces at the Battle of Stamford Bridge on 25 September. Three days later, Duke William of Normandy landed at Pevensey on the south coast. King Harold was back in London by 6 October and the Battle of Hastings took place on 14 October. Nineteen days elapsed between these two battles at opposite ends of the country.

That is one day more than the interval between the publication of Lord Justice Jackson’s Final Report on Civil Litigation Costs and the opening of LegalTech. It is better than having to trail your army up and down the A1, but you would not want to be the person who is expected to comment on both, would you?

It is hard to underestimate the interest shown in Jackson in the UK. 3000 people signed up to watch Dominic Regan’s webcast on the afternoon of the launch. I published 2,500 words on it that night (see First thoughts on the eDisclosure implications of the Jackson Report); the second edition of the LexisNexis book on Electronic Evidence, for which I have written a section, was waiting to go to press and had to be updated in a hurry; I have in hand a big paper whose final form must reflect the e-Disclosure sections of the Jackson report; a date in mid-February is fixed for recording a podcast — “this leaves plenty of time to do some prep” says CPDCast optimistically; conference organisers want to fine-tune their agendas; and then the editor of a prestigious legal computer magazine asks for a couple of thousand words on Jackson. This is all good stuff, and I could not be happier than in complying cheerfully with all these requests. Read the rest of this entry »

Applied Discovery gets new marketing wind behind it

January 17, 2010

Good eDiscovery marketing must give would-be clients useful information and help, not just shout “buy me” with a list of functions and benefits. All forms of media must be pressed into service, and value lies more in helpful content than in glossy presentation.

We are suddenly hearing a lot about Applied Discovery, which has been in the electronic discovery market since 1998 and part of LexisNexis since 2003. I will be meeting them at LegalTech in New York at the beginning of February and will find out more about the products and services, not least the introduction of a new Global Alliance Partner Program whose aim is to deliver complex discovery services worldwide to law firms and corporations. The press release is here and there are links from it to pages about the products and services which Applied Discovery offers.

What interests me for present purposes is the pure marketing angle. Here is a company which has been around forever, doing solid business in the e-discovery market, so far as I am aware, but not really attracting attention – my attention, anyway. Suddenly its name is everywhere. Wearing my marketing hat, I have to wonder why. Read the rest of this entry »

Trilantic assembles experts for International eDiscovery Track at LegalTech

January 14, 2010

UK-based legal support provider Trilantic has put together a double panel session on EU data privacy and related subjects which takes place on the first day at LegalTech, Monday, 1 February.

Subjects covered will include privacy considerations and EU data protection rules, compliance with them, and the proper response by corporations to US litigation and regulatory matters involving data held in the EU.

These subjects increase in importance each year. US courts and regulators are becoming more demanding whilst, simultaneously, EU countries become more and more protective of data held within their borders. Read the rest of this entry »

Interview with Metropolitan Corporate Counsel about Equivio>Relevance

January 14, 2010

Metropolitan Corporate Counsel has published an interview based on a long conversation which I had with them before Christmas. The title is Trainable E-Discovery Software Offers Cost Savings and the subject is Equivio>Relevance.

The main theme of the interview was the extent to which lawyers can rely on modern software applications to help them get quickly to what is important from a large collection of documents. This is not just a matter of having a “defensible” process in the sense of one which can be justified to opponents or to the court. The first person who must be convinced is the lawyer himself. Before any lawyer will delegate any part of the process to a machine (for that is how many of them see it) he must be convinced that the result will be at least as good as would be obtained by manual review. In practice, of course, manual review is neither practicable nor all that it is cracked up to be in terms of its accuracy, even before the comparative costs are brought into account – manual review means lawyer time, and that means expense. The technology discussed in the interview cuts through much of that expense, to say nothing of the elapsed time to a conclusion. Read the rest of this entry »

Anacomp divests to focus on CaseLogistix, eDiscovery and litigation

January 5, 2010

Anacomp has sold its MVS Division to DecisionOne in order to focus on eDiscovery with its document review application CaseLogistix and the services which go with it. 2010 should be the right year to concentrate on eDiscovery

You would probably expect me to be an advocate of specialisation, and of sticking to what you know about. What do you do?, people ask. I am involved in a small sub-set of the procedural requirements for civil litigation, I say. They yawn. There’s more, I say. I know about a specific aspect of the use of technology for information retrieval and review. They look around for someone else to talk to. No, listen, I say, the intersection between these two subjects is really interesting and important. Their head hits the table. There is only a handful of us in the world who just write and talk about it, I add, as I try to shake them awake. Gone.

I exaggerate, a little. That is, however, the way the world is going as life becomes more complicated and information-rich. If you practice law or medicine, manufacture things, teach or join the military, the trend is towards finding something you are good at and which people want to buy, and doing it well.  There are exceptions – people or businesses who find skills or niches which complement what they do already or to which they can bring a team and a process which they have developed in their main business. The word consolidation can imply two opposite ideas – adding complementary business areas or bringing your main fire-power to bear on one target. Read the rest of this entry »

Georgetown Law: to Insource or to Outsource by George Rudoy

December 3, 2009

Outsourcing part of the disclosure / discovery process has suddenly attracted attention in the UK. Some think that this is due to the instincts in common between lawyers and the poor old lemmings, who are invoked as role models whenever more than two people or organisations move in the same direction simultaneously.

I am not sure that this correctly describes the motivation. It seems unlikely that the widely-publicised moves by Pinsent Masons and Simmons & Simmons are solely responsible for an increased interest in the idea that some work can be done just as well but much more cheaply by others. I suspect that many firms have been considering the possibility of sending out such work to India or South Africa for some time, and that they are influenced by wider matters than the example of two particular firms. Read the rest of this entry »

Virtual LegalTech round-up

November 24, 2009

The general reaction to ALM’s Virtual LegalTech by its participants and delegates seems generally to be positive. If, as Charles Christian said on Twitter afterwards, it had a 1990s feel to it, well, that can doubtless be improved upon in future years. Christian is right also to say that opportunities were missed to make use of multimedia in the presentations, particularly as to the technology itself. Some of the ideas which I have scouted on this site for video presentations of technology solutions might easily have been slotted into the framework. This is all capable of remedy in future presentations.  ALM bit off quite enough for a first go at this. Read the rest of this entry »

The FSA swoops on the unprepared

March 20, 2009

The American Museum of Natural History in New York contains many tableaux – scenes of animals and man in various stages of early development. My son and I spent an afternoon in there when LegalTech had ended and I found that I recognised many familar types from the litigation world amongst the figures, most obviously (too obviously perhaps) the dinosaurs of whom I wrote in LegalTech lessons from extinct species.

I have now been through the photographs which I took with half an eye on their value as illustrations to this commentary. You may expect to see pictures of walruses and buffalo who look like judges,  primitive men for whom technology meant flints and whose idea of co-operation involved spears and clubs (you know who I mean,  all you who use discovery / disclosure as a bludgeon) and, of course, dinosaurs. Read the rest of this entry »

As the sun sinks slowly in the West we say farewell to LegalTech – or do we?

March 3, 2009

You are all too young to remember the clichéd ending to those American travel documentaries which always ended with the sun sinking slowly in the West. So am I, despite being old enough to remember telexes and carbon paper as the must-have office equipment. The expression lives on, in the UK at least, because of the Peter Sellers parody “Balham – Gateway to the South”, which itself dates from 1964 – a cliché kept alive by a parody which is itself too old for most to remember.

Sunset over New York

My photograph was taken on the Queensboro Bridge as we left LegalTech for JFK this year, made possible by the generous windows of the large black limousine which Nigel Murray had commandeered at a good rate with a degree of resource doubtless acquired in his army years. This combination of clichés, parodies, sunsets, New York and LegalTech was brought to mind by a slight sense in some quarters that this Leviathan of a show may have had its day. Read the rest of this entry »

Autonomy panel at LegalTech points to proactive clients – and lawyers

February 24, 2009

Panel sessions at LegalTech and other conferences combine the best of all worlds so far as I am concerned. The burden is distributed – the moderator has to have a plan and the ability to herd the speakers through it, and those on the panel have to have an agreement as to who is going to cover what, but you don’t have to prepare slides a month in advance nor stand alone under the spotlight hoping that the words sound as good live as they did four weeks ago in the seclusion of your office.

There is enough structure but also room for spontaneity as the discussion takes turns which were not on the formal agenda and, as long as the moderator is good enough to haul you back to the advertised programme, they can be fun to do – assuming, of course, that your fellow-panellists  have something useful to say.

There was no problem on that score with the two panels which I did for Autonomy at LegalTech in New York earlier this month. The programme was the same for both of them. Carter Hopkins, in-house counsel at McAfee, and I were on both of them, but the third player in one was Florinda Baldridge, Global head of Litigation Support at Fulbright & Jaworski and at the other was Laurie Weiss, co-head of Fulbright’s E-Discovery and Information Management Practice Group. Deborah Baron, VP Legal & Compliance at Autonomy, Inc. was the able moderator. Read the rest of this entry »

Trilantic panel explores international e-Discovery initiatives at LegalTech

February 24, 2009

Not much changes at LegalTech from year to year. Sure, the trends come and go – “the move to the left”, Twitter, and “Please look at my CV” being this year’s big things – but for the most part, the same booths, the same faces and the same routines turn up every year.

One discernible change, however, is the interest in what is happening in other jurisdictions. “Abroad” does not rank high in US consciousness. We mocked George Bush when he asked a Welsh singer which state Wales was in, but most Americans, I think, would just wonder why anyone would care which state Wales is in. Sarah Palin thought Africa was a country, but no-one seemed seriously to question whether her foreign experience – a fly-by of some US bases, a refuelling stop in Ireland and a holiday in Mexico  – was adequate for a vice-presidential candidate. In the e-discovery world, most Americans see Europe as a cross between a modest museum and a commercial colony full of obstructive civil servants obsessed with data privacy. For years, the value of the dollar and a terror of terror kept them all at home.

You do not see this until you go to the US. Most of the Americans I know well have a well-rounded world view but that, I now realise, is because I meet most of them outside the US – they self-classify themselves as people who know of the world outside America because that is where I come across them. The insular ones – including, unfortunately, those who make political and commercial policy – stay at home. This matters because the US is still the commercial powerhouse of the world – no-one in America cares, frankly, what Gordon Brown thinks about America, but it does matter what America knows, or thinks it knows, about the rest of the world. Read the rest of this entry »

Legal Inc panel at LegalTech lives up to its billing

February 22, 2009

Litigation support providers from the relatively small UK market  made a good showing at LegalTech in New York this year. Amongst them was Legal Inc who hosted a panel of luminaries moderated by Charles Christian of Legal Technology Insider. LTi now has an American Edition, compounding the sense that the UK has something to contribute to the US legal technology scene.

The Legal Inc panel consisted of Sanjay Bhandari of Ernst & Young, Matthew Davis of Lovells and Andrew Haslam of Legal Inc, with the US represented by Peter Cladouhos of Paul, Hastings, Janofsky & Walker LLP.

The advertised purpose of the panel was to draw attention to some of the pitfalls and dangers inherent within electronic disclosure that can ensnare the un-prepared, and to explain how preparing for, and meeting the demands of, electronic disclosure can be scaled for large, mid-sized and even small organisations. The UK has some relevant case law at last and that, coupled with a planned EDD questionnaire  and increased judicial interest in the time- and costs-savings, suggests that the ability to handle documents and data electronically is permeating down to smaller organisations and more everyday cases.

Legal Inc Panel at LegalTech

Lisa Burton of Legal Inc introduces the Panel

Peter Cladouhos, Sanjay Bhandari, Matt Davis, Andrew Haslam, Charles Christian Read the rest of this entry »

Judge Facciola LegalTech messages are for UK as well as US lawyers

February 17, 2009

There was something almost surreal about the discovery that the LegalTech organisers had failed to record US Magistrate Judge John Facciola’s keynote speech, given that Facciola regularly delivers Opinions castigating parties either for faulty decisions about technology or for technological incompetence. Did someone decide “Nah. It’s only that Italian guy – let’s not bother” or did someone press the wrong button on the tape recorder? Whatever the cause, it is a pity. The speech, like many of John Facciola’s Opinions, should be compulsory listening for lawyers and judges, and as much on the UK side of the Atlantic as on his.

The speech was introduced by Neil Aresty of Legal Computer Solutions, Inc. Aresty made reference to the “Christmas Eve decision” in Covad Communications v Revonet. A paragraph from that decision will suffice to set the scene and to show why Judge Facciola strikes a chord in the UK. Speaking of an archaic form of document request which ignored the last 40 years of technological development, he said:

“While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Read the rest of this entry »

Parallel views from across the Atlantic

February 11, 2009

The respected e-discovery commentator Tom O’Connor has published his initial report on LegalTech on his blog, with the title The Big Takeaway from LegalTech New York. His patch in the US e-discovery scene roughly parallels mine in the UK. We did a panel together at LegalTech (see How safe is safe harbor?) and we are both involved with e-Disclosure Information Project sponsor Anacomp/CaseLogistix.

Tom’s main theme is the growing realisation of the importance of the clients’ data at the left hand (information management) end of the EDRM diagram, and the links between content management and electronic discovery. His comment is actually about the lack of such realisation by lawyers, despite the fact that clients and suppliers are moving there fast – Autonomy’s pending acquisition of Interwoven is clearly founded in part on this realisation.

Tom rightly ties this assessment of the lawyers’ slowness to grasp the point to Judge Facciola’s speech, which remarked on the stubborn refusal of lawyers to accept that technology must be understood by those who purport to conduct litigation. I will shortly put up my own report of Judge Facciola’s speech.

The key, in the US and in the UK, is education. Clients, courts and justice itself are badly served for as long as lawyers refuse to accept that handling electronic documents requires a modicum of knowledge about the subject.


Kazeon to host judicial e-discovery webinar

February 11, 2009

I have yet to write up the tremendous speech made by US Magistrate Judge John Facciola at LegalTech in New York last week. My excuse, if such be needed, is that it contained so much of importance to anyone practising in any common law civil jurisdiction that it will take some time to capture what he said. For some unaccountable reason, the organisers failed to record it, making it the more important to write it up.

The influence of a judicial perspective on any aspect of case management is not to be under-rated, and this applies more to electronic discovery than to anything else. One of the issues we have in the UK, for example, is one of consistency of outcome – parties do not know what to expect from the judge and so cannot negotiate about the scope of disclosure within a known framework.

US judges are more willing to discuss publicly what they expect from parties, probabaly because they are taught about it and have more exposure to it than UK judges. Kazeon, who provide software and services for corporations, legal services providers and law firms to search for, retrieve and analyse data, has a webinar coming up at which the speakers include two judges. Read the rest of this entry »

Hanzo Archives show web archiving at LegalTech

February 11, 2009

So, you have got your mind round this “move to the left” bit they were all talking about at LegalTech and you are clear about the importance of information management, the first stage of the EDRM diagram as a start-point (the obvious start-point if you think about it) for the collection of documents and data for litigation or for facing a regulatory investigation.

You have your custodians sorted, know how you will manage your Microsoft Office documents, may even have got your mind round the HR and accounting databases. Sorted then, ready for anything, bring it on.

The chances are that you have missed one big thing – the corporate web site and intranet. Unlike, say, individual Word files, each part of a web site depends on others. Unlike your HR or accounting database it probably lacks the tools to check its own integrity, which may depend on elements beyond your control. It probably changed frequently, with no thought as to preservation of the replaced pages, still less the ever-changing content of any database which was the source of the components of the pages. Yet your web site was customer-facing, possibly included pricing or terms of contract, and could be vital evidence in any dispute or investigation. If you think that just copying it all onto a backup tape from time to time is the answer, have a go at restoring your last backup – if, indeed you ever made one.

That is the selling message of Hanzo Archives, whose Mark Middleton came to see me in Oxford a little while back after attending a conference at which I was speaking. I came across him again at LegalTech in NewYork last week, apparently happy that he had attracted attention even in the gloomy corner of the Hilton’s third floor which had been allocated to Hanzo Archives. His observations on what he learned from the booth’s visitors are on Hanzo Archives’ blog.

It is always good to see a British company carrying initiatives to the US, as well as to mainland Europe. It will be interesting to find out how much of the LegalTech interest converts into something more.


How safe is safe harbor?

February 10, 2009

I spoke on safe harbor on a panel at LegalTech sponsored and led by LDSI. Does it give as much protection as its proponents aver? Why is Europe so concerned about data privacy anyway?

It is a beguiling expression, safe harbor. You picture small boats rocking gently in the sunlight behind a stout sea wall whilst the storms rage beyond. Your precious cargo of data shipped from Spain or Italy is protected from the threatening clouds marked “SEC” and “IRS” and can be processed and reviewed in peace by your trusty crew. European data controllers can sleep peacefully at night confident that they are protected from marauding information commissioners and angry data subjects.

Safe harbor

Such is the appeal of the expression “safe harbor” that America started using it simultaneously for more than one completely different concept. One is the registration mechanism thrashed out between the European Commission and the US Department of Commerce in 2000 to mitigate the commercial impact for US companies of the EU Directive 95/46/EU of 1995 on the Processing of Personal Data. Another protects ISPs from copyright infringements by their users. The expression also occurs in Evidence Rule 510 to do with waiver of privilege. This article relates to data privacy. Read the rest of this entry »


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