Browning Marean: the tributes pour in

August 26, 2014

My article about the late Browning Marean Goodbye old friend has attracted several comments from those who were touched by his contribution, personal and professional, to them and to eDiscovery. The English judge HHJ Simon Brown says Browning was “the Global Professor of eDiscovery”.

The recurring themes include the encouragement which he gave to others and the word “laughter” and its synonyms. Herb Roitblat of Orcatec said in a tweet:

It’s good to see that he treated many others as well as he treated me, which was very well.

I knew Browning only a short time compared with others like Tom O’Connor and Craig Ball – my particular privilege was to see him on tour in nearly every jurisdiction in which eDiscovery is required, but they knew him for years. Craig Ball’s article Browning Marean 1942-2014 has been extended since I first recommended it and has similarly attracted many comments.

A lovely post by Tom O’Connor on the LTN site, Browning Marean: a remembrance gives us personal recollections going back to the dawn of electronic discovery. Monica Bay has given her tribute in Browning Marean loses battle with cancer. Both of these LTN articles require registration.

Ralph Losey called his article Browning Marean: the life and death of a great lawyer, the title reminding us that Browning was a lawyer first and an eDiscovery expert as a consequence. Ralph Losey added a tweet today saying that Browning was:

the first big firm attorney to use senior status to specialize in e-discovery and training. Helped his firm, DLA Piper

…while Michael Arkfeld reminds us that Browning used to say of DLA Piper that:

if they knew how much fun I was having, they would fire me.

US disputes lawyers and those who provide discovery services to them are a tough lot, with little room for sentiment in their professional lives. If the industry is in fact softer and nicer than its professional image sometimes implies, then that is in part due to Browning’s influence. It has certainly appeared in the reactions to his death.

There is a set of my photographs of Browning here.

Home


Goodbye old friend: farewell to Browning Marean

August 24, 2014

BrowningDublinBrowning Marean of DLA Piper US died a couple of days ago. He had spent much of the year undergoing treatment for oesophageal cancer. When we spoke on Skype recently (oh so recently) he was excited at events coming up in Dublin and Prague which would be the first time I had seen him for months. At ILTA in Nashville last week, his many friends heard of his sudden readmission to hospital and stopped each other in the corridors to ask for the latest news. No-one else in eDiscovery – no-one else I know anywhere – could get the level first of concern and now of grief as he has had.

Craig Ball wrote a warm appreciation of Browning which you will find here. I have put up on Flickr some of the many photographs I took of him in the places we visited together – the US of course, but also London, Dublin, Hong Kong, Singapore, Sydney, Prague, Munich, Macau and, of course, Oxford. He would ring me up with his flight arrangements and make me promise to “break bread” (one of his warm phrases) with him – not that I needed encouragement. Even now, when I get out of airports in distant places, I still expect him to be the first person I see at breakfast on the first day of events, if not in the bar the evening before.

I was introduced to Browning Marean at a party in London in, I guess, 2007, by Jonathan Maas, then at DLA Piper and now at Huron Legal. I can picture the setting, the place in the crowded room, the circle of people pleased to keep the company of this man with a Father Christmas twinkle, the one-liners of a stand-up comedian and the serious interest of an eDiscovery expert. I had recently reached the conclusion that I could not talk and write about UK eDisclosure without understanding what went on in the US – how else could one rebut the frequently-met argument that “eDiscovery is something Americans do, and look what expense it causes” – and Browning was to become my guide. Read the rest of this entry »


Could an English court require lawyers to make a video about their disclosure obligations?

August 12, 2014

I recently wrote an article about the Court of Appeal’s decision in Denton which I called Letting the punishment fits the crime as Mitchell gives way to Denton. As the title implies, I suggested that Denton took us some of the way back to Lord Justice Jackson’s intentions and that the courts were now better able to exert discipline in a way which had regard to Jackson’s original intentions. I cited Gilbert & Sullivan’s Mikado as a model for the idea that the punishment should fit the crime.

A US judge has taken this one step further. Faced by a party whose conduct of eDiscovery involved taking every point and other activities which lost sight of the “just, speedy and inexpensive” requirement in Rule 1 of the Federal Rules of Civil Procedure, the judge focused on the value of educating the delinquent lawyers. He required them to make a video explaining the proper way to manage eDiscovery. The story is well told in this article from Above the Law which annexes the judge’s order and sets out the more quotable passages in the ruling.

One is a generalised complaint about the conduct of eDiscovery which is worth repeating. It reads:

Discovery — a process intended to facilitate the free flow of information between parties — is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught…. Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding.” Read the rest of this entry »


Comparing like with like and keeping eDisclosure fears in proportion

July 30, 2014

“E-disclosure is about being clever with the way you do document reviews. It’s about picking the right search terms, using a good provider and having a proper hosting platform.”

This sensible quotation, from RPC disputes head Geraldine Elliott, appears in an interesting article in The Lawyer of 28 July headed Special report: eDisclosure – trials and tribulations.

To my eye, the article includes some implied comparisons which paint a misleading picture: the overall cost of using one technology must be compared with the overall cost of using another or of using none, including the cost of time spent or saved; return on investment must include savings and strategic and tactical benefits, not merely expense over the life of a case; a few extreme examples of egregious disclosure failures do not justify disproportionately expensive disclosure exercises in all cases – that was the American way, and we want none of it here.

With one exception – confusing the word “sanctions” (as in “punishment for default”) with the consequences of that default, namely the entry of a default judgment for the sum claimed, I do not really disagree with the components of the article. Strung together, however, the overall impression is perhaps not quite as its separate contributors intended. As it stands, it reinforces the perception that eDisclosure is simply threatening, technical and expensive. It may be all those things, but lawyers who just conclude that new technology is too expensive without looking at it, who omit half the equation when comparing costs, and who read only the cases in which people screwed up, are unlikely to develop a rounded view.

The article includes interviews with people who are engaged in eDisclosure exercises, and includes discussions about the rule changes and case management strictness, and the different ways in which firms are managing electronic disclosure, as well as some references to cases which have not gone well for at least one of the parties.  I focus here on a couple of areas which I would have expressed slightly differently. Read the rest of this entry »


Conflicting positions on accessibility of data

July 28, 2014

Neil Cameron wrote recently about two different aspects of accessibility of data in an article called Update on US land grab for foreign emails. One is the demands made by the courts and authorities of one country (usually the US) in respect of data which lies outside their jurisdiction. The other is the so-called right to be forgotten. I am slow to come to it because I spent much of last week at the Sedona Conference Cross-Border Programme on the same and related subjects. They are simultaneously important and intractable.

As its title implies, the article leads on claims made by the US Government for emails held on Microsoft’s servers in Dublin. Privacy campaigners may claim this subject as their own, but it has much wider commercial implications than privacy. One of the subjects which comes up in the New York Times article to which Neil Cameron refers is the question whether Germany will allow its data to sit on Microsoft’s servers anywhere. This is sub-set of a wider question about the business lost by all US cloud providers as customers world-wide decide against keeping data within reach of US subpoenas as well as their spies (though I think you can take it that the spies have a wider range of investigatory tools at their disposal than the courts).

Neil Cameron was recently invited to give evidence to the House of Lords EU Sub-Committee F on the so-called “right to be forgotten” – he is no enthusiast for the unrealistic posturing of EU courts and politicians whose idealistic vision is uncluttered by any commercial or practical good sense. The second part of his article covers this separate but related topic.

His conclusion that we need “a new kind of global regulatory framework… for controlling electronic commercial and criminal activity on some kind of rational and universally agreeable basis” is obviously right. Before we can aspire to this at a diplomatic level, however, we first need a consensus at a state level within each relevant part of the globe. US spies have interests which do not align with those whose purpose is commercial comity; Chinese trade officials conflict with colleagues who guard Chinese “state secrets; EU privacy campaigners have legitimate fears about the use being made of private data by commercial organisations who themselves say that their expansion (and with it their contribution to the economy) depends on cross-border freedom of information as well as of goods and services.

Don’t hold your breath waiting for a global regulatory framework.

Home


Letting the punishment fit the crime as Mitchell gives way to Denton

July 21, 2014

What was over in moments, added a word to the law’s dictionary, led to countless spin-off cases and applications, cost millions in legal fees, ended reputations and, having left its mark, disappeared from the scene?

There is are curious parallels between “Plebgate” and the judgment called “Mitchell”, either of which could be described in this way. The original incident, the only event with a “-gate” suffix which actually involved a gate, was over in seconds; Andrew Mitchell lost his Ministerial job, one policeman went to prison, others were disciplined and a rotten branch of policing was given a long-overdue shaking; at least two libel cases ensued and the whole consequent series of investigations and civil and criminal claims will keep many lawyers in claret for long after we have forgotten both Plebgate and Andrew Mitchell.

It took Lord Dyson a few minutes rather than seconds to deliver the Court of Appeal judgment known as “Mitchell”, and its consequences have been similar to Plebgate. Millions of pounds have been spent since, in complying with the regime which the judgment spawned, in arguments and applications resulting from it, and in bringing claims against lawyers whose every minor default became a cause of dispute. It is suggested that “Mitchell” was the last straw for some solicitors, already hard-pressed to break even. Court lists were flooded with Mitchell-related applications. A spirt of co-operation, or at least of give-and-take, between solicitors, which had always oiled the procedural wheels, disappeared in a new climate in which lawyers felt it their duty to take every point in case they could “Mitchell” their opponents, and cases which could have proceeded toward trial were delayed as the “Mitchell” point was contested; one involved a delay of 46 minutes in serving a list of documents. Read the rest of this entry »


Take your legal work in, put your legal work out. In, out, in, out, shake it all about

July 11, 2014

The Hokey Cokey, whose words I bastardise for my title, proves to have national variants, rival sources and alternative meanings, not all of them positive.  You can fight about that among yourselves. All I want from it is the idea that legal work (the work in support of a legal function, I should perhaps say) is heading in two directions. Some companies are taking more in house, others are distributing it. Most will “shake it all about” this year. An article by Xerox Litigation Services puts eDiscovery / eDisclosure software and services into the mix.

Sometimes a batch of related subjects comes at you at about the same time, making it easy to assume that the subject is on everyone’s lips. That may, of course, be a false conclusion derived from the fact that we select our sources to reflect our interests – the websites we visit and the people we follow on Twitter will have been chosen because their interests (though not necessarily their opinions) match our own. Nevertheless, if a subject recurs, there is probably something worth investigating.

A theme which came up recently for me, in different places, was about how companies get their legal work done and how law firms deliver services at a cost which is acceptable to the client whilst giving them a profit. Professor Richard Susskind has long sneered at law firms whose response to downward pressure on fees is simply to knock 5% or 10% off their hourly rates. We have moved beyond that to serious thought, by both companies and law firms, about who should do the work and where it should be done. The answer to these questions may involve thinking afresh about the distribution of work within the company or firm; it may involve collaboration with outsiders who can perform discrete functions in a way which reduces cost whilst maintaining quality.

XeroxMost of the sources which come my way are likely to have an eDiscovery / eDisclosure or litigation context, but the subject obviously goes wider than that. A US article from Xerox Litigation Services and Bryan Cave, whose self-explanatory title is Corporations moving into the eDiscovery drivers’ seat, is my destination, but my route to it goes via UK articles, none of which are specifically focussed on litigation. Like the Hokey Cokey, the ideas turn up in broadly similar form in different countries. We say “Cokey”, they say “Pokey”; we say “eDisclosure”, they say “eDiscovery”; the broad concepts are the same. Read the rest of this entry »


Follow

Get every new post delivered to your Inbox.

Join 164 other followers