Justice takes a bashing but litigation work goes on

April 2, 2014

To say, as I did in a recent article, that that “civil justice in the UK has plunged off a cliff” is not the same as saying that civil disputes are in decline. Litigation lawyers, at least at the mid- to high level, seem to be busy enough, as do most of the London-based eDisclosure providers. The Jackson Reforms, now a year old, have positively generated work for some, although much of the focus has been more on procedural matters than on evidence and issues. Part of this, conveniently labelled “Mitchell”, has been negative, the opposite of the “justice” which the overriding objective requires; part of it, and particularly the eDisclosure aspects, reflect the attention which the rules now require on the sources, the methods and the costs of disclosure. One can deprecate the Mitchell aspects whilst thinking it right that parties are being required to pay early attention to the evidence and to the prospective costs.

Whilst in the US recently, on a tour which embraced both eDiscovery events and a short holiday, I wrote an angry article (“blistering” was amongst the comments I received) on the state of British civil justice. If that seems an odd way to spend a holiday, well, the times are odd and it annoyed me. Better out than in as they say, so I wrote to get it off my chest. The article was headed The Jackson consultation responses pull no punches but Grayling and the MoJ will ignore them.

The article had three targets – a Lord Chancellor who seems ignorant of the basic concepts of justice, a Ministry of Justice staffed by people whom I described as “standard issue overpaid time-servers and… academics who have failed to hack it in the strenuous world of university life”, and senior judges whose understanding of the practicalities of business life is defined by their lifetime experience of working for very big firms, on very big cases, for very rich clients.

I referred to one or two of the responses to the Civil Justice Council’s consultation, mainly to show that my observations were derived from the daily experience of those who have to deal with the consequences of these things. I was at pains to draw attention to differences (identified in some responses) between Lord Justice Jackson’s original recommendations and the position in which we now find ourselves. Quite apart from the fact that he had nothing to do with (for example) the reduction in legal aid, Lord Justice Jackson specifically recommended investment in court systems; whilst he was keen to encourage compliance with the rules, it was no part of his plan that we should have the climate of fear and uncertainty which derives from Mitchell. Read the rest of this entry »

The Commercial Litigation Association of Ireland launches a Good Practice Discovery Guide

March 10, 2014

As will be clear from other references on this site, I am interested in developments in discovery practice in any jurisdiction for which eDiscovery is required by the rules of local civil procedure.

My most recent involvement in this respect was in Hong Kong where I took part in a panel discussion on the proposed Hong Kong eDiscovery Practice Direction which is closely modelled on Practice Direction 31B in England and Wales.

The Commercial Litigation Association of Ireland has just released a Good Practice Discovery Guide which you can get from the CLAI website here. As with the Good Practice Guide to eDiscovery published last year (I wrote about it here) Mr Justice Frank Clark has been closely involved in its production. Another common feature between the two guides has been the involvement of Simon Collins of Ernst & Young Ireland.

Mr Justice Clarke is one of the speakers at the IQPC Information Governance and eDiscovery Summit to be held in London on 13-15 May where we will have the opportunity of hearing from him about eDiscovery developments in Ireland.


Nigel Murray gets hip – and rides again for Help for Heroes

March 10, 2014

eDiscovery and data privacy consultant Nigel Murray is again cycling across northern France on the Big Battlefield Bike Ride between 1 and 8 June in support of Help for Heroes. Two things make this a special year – one is that this is the 100th anniversary of the start of the Great War; the other is that Nigel has recently had a hip replaced.

Most of us would consider that this entitled us to give it a rest. Nigel has always, however, made much of the fact that many of those who take part in this demanding ride are themselves disabled, some of them seriously so. He compares the difficulties posed by his own operation with those who are missing whole limbs, in many cases multiple limbs, and gets back on his bike.

His operation means that he has only just been able to start training. He doesn’t seem to need much encouragement, but let’s give it to him anyway by making a contribution through his fund-raising page. As well as allowing you to donate, this page gives you more information about the adventure.


Launch of the Information Governance Initiative

February 19, 2014

The most interesting topic of discussion at LegalTech 2014 was not some new technology nor the proposed revisions to the Federal Rules of Civil Procedure, but the launch of the Information Governance Initiative. That is certainly not to dismiss the technology at LegalTech – Equivio launched Equivio Zoom for Information Governance in the same week as the IGI, and Recommind’s Axcelerate 5 made its appearance at LegalTech for example - but the technology is servant to the objectives, and information governance is increasingly seen as the objective which matters; that is why Equivio and Recommind are among the supporters of the IGI.

The inspiration behind the IGI comes from the strong team which has assembled at Drinker Biddle & ReathBennett Borden, Jay Brudz and Jason Baron who, with Barclay Blair of ViaLumina and others, have long been the instigators of constructive thought about information governance.

What is information governance exactly? That is addressed in the description here of IGI’s mission, which lists thirteen key components of IG. None can deny their importance; it is evident too that things will be missed – benefits and opportunities as well as risks – if the management of information sits in thirteen separate silos within a corporation. Read the rest of this entry »

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 »

Lots of things to catch up with in eDiscovery and civil justice

February 14, 2014

Yes, there is much to be writing about, and it will all appear here soon – including a post explaining what I have been doing and why there has been a gap in my reporting and commentary.

Briefly, I have been at LegalTech in New York with a brief break in Washington before that. As well as consuming time and energy, LegalTech always generates both material for articles and correspondence. We made a number of video interviews there and have been working to produce those.

Meanwhile, my Twitter timeline has been full of tweets and links about the ever-increasing volume of judgments following the UK Mitchell decision, as well as some vociferous opinion on them – those who sneer at Twitter as being all about what other people had for breakfast are missing a valuable – and always current – source of information. A second strand involves the conflict between Lord Chancellor Grayling’s ambitions to attract legal business and the way in which he and the Ministry of Justice seem intent on driving that business away; other jurisdictions, not least Singapore, are offering sensible alternatives.

In between all that, I spent time being sedated by a dentist, in rearranging appointments thanks to Oxford’s new status as an island, and working on the agendas for forthcoming conferences. Lastly, and more personally, my mother seemed threatened by serious illness which was somewhat distracting – and now, thankfully, not what it appeared to be.

Normal service will be resumed soon.


Evidence, privacy and proportionality at Lawtech Europe Congress in Prague

January 30, 2014

I have no particular ambition to write up events as soon as they finish. Distance lends perspective, and anything worth reporting at all will be as valuable a couple of months later. The Civil Procedure Rules of England and Wales gave me enough to be getting on with at the tail end of last year and I only now turn to what was covered at the Lawtech Europe Congress in Prague, the second one organised there by Frederick Gyebi-Ababio.

My own interview filmed on the day gives a summary of why it is important to hold events in central Europe, and correspondingly important for eDiscovery people be there. Prague sits in the middle of a big region and one which is full of potential, not least because of its trade with the US. It is important for businesses and those who advise them to understand the expectations of US discovery, both because they have to face it and because it will become increasingly necessary for these jurisdictions to adopt their own discovery rules – as I say in the interview, a jurisdiction which establishes the content and validity of documents by notarised prints or screenshots has some catching up to do.

This is not just because of litigation – we see a activity by regulators from the US, the EU and within each region, all of whom wants to know what the story is. The story lies in the electronic evidence, and whilst much of the interest perhaps still lies in criminal investigations, civil eDiscovery cannot be avoided. Those who provide professional and technical services will cede the ground to the big four consultants, who are already there for other reasons, if they do not register their presence to some extent.

Paul Salazar of Siemens gave the keynote address, sponsored by Exterro. He ranged broadly over the duties of internal counsel, describing the processes which they must develop in order to anticipate and manage eDiscovery demands.

The emphasis on process can easily obscure the importance of data as evidence. Yuval Ben Moshe of Cellebrite opened the show with a panel whose focus was eDiscovery and the rise of evidence on mobile devices. He had as his panel members Patrick Burke eDiscovery Counsel at Reed Smith, Jo Sherman of edt. and Damian Murphy, an English barrister establishing his own chambers specialising in eDisclosure.

2013-10-E-4236Damian Murphy, Jo Sherman, Patrick Burke, Yuval Ben Moshe

Between them they gave us a good balance between the technical components and the need to focus on what really matters. It is not necessary for proportionality to be enshrined in the rules to get the idea that resources must be proportionate to what you are trying to achieve.

My first panel covered the relationship between scope, method and cost – how much do you need to collect, what is the best way of doing it, and how do you keep the costs within reasonable bounds whilst doing a good job? Read the rest of this entry »

Reducing the number of documents to be reviewed

January 22, 2014

Charles Christian’s Legal IT Insider has published a very good article by Drew Macaulay, Managing Director of Consilio in London. Its title is Establishing effective cost controls in litigation and regulatory investigations, and gives the same emphasis to budgets as a Consilio webinar due to take place on 24 January (I wrote about it here) and registration is here) called Understand and control discovery costs in cross-border litigation.


Drew’s article needs no summary from me – it is a clear and succinct explanation of the factors to be taken into account in any eDisclosure / eDiscovery exercise. I draw it to your attention, and specifically in a UK civil procedure context, for one half sentence in the article which reads:

“The primary cost driver and disclosure exercise is the number of documents that need to be reviewed…” Read the rest of this entry »

Judge Facciola and Jason Baron top the bill at UBIC’s Washington seminar

January 20, 2014

UBIC is perhaps best known as a provider of software and services specifically aimed at electronic discovery and with a particular specialist skill in managing Asian languages. It is more broadly based than that, however, and extends into information governance and the management of risk and cost, and into wider areas of search and analysis.

UBIC is running a series of what it calls Signature Seminars, at which speakers from relevant disciplines address issues which affect companies and their lawyers. I took part in one of these, in Washington on 6 December.

UBIC invited me to moderate a panel called Information Governance and Data Privacy Challenges under US Regulatory Investigations. If I had had any doubts about accepting this invitation (it is a long way to go for a 60 minute panel), they were dispelled by the company I would be keeping. The opening speaker was to be Jason Baron, information governance and eDiscovery counsel at Drinker Biddle & Reath; the closing speaker was US Magistrate Judge John Facciola. My panel would be sandwiched between these eminent speakers. Who could resist?

UBIC’s own page about the event is here. It includes links to a video of Jason Baron’s full presentation, and to interviews with Jason Baron, with Christina Ayiotis and with me (I talked mainly about privacy and about metrics and budgets), together with a set of my photographs (you can see those also in a more easily-skimmed wallpaper layout here.

Inormation governance, eDiscovery, technology-assisted review and privacy all featured, as did a barnstorming performance from Judge Facciola about the changing requirements of the lawyers of the future. By “future” he meant now; if part of what he said was critical of lawyer unreadiness, part (as with Jason Baron’s talk) saw a bright future for those who “get it”. Read the rest of this entry »

EDiscovery leaders and career opportunities highlighted by US legal publications

January 16, 2014

Electronic Discovery / eDisclosure is a new discipline. It has passed the Wild West stage but it is still new enough and small enough that the contribution of its founding members can be recognised with the perspective of time. Three US legal publishing companies have produced lists recently of individuals whose contributions have helped shape the industry.

What value lies in reciting other people’s lists? I hear you ask. Well for one thing, my coverage is selective, with a bias towards people I know or have some connection with. For another, two of these articles are not readily available and it is not open to me to just link to them. Third and more importantly, I am keen to encourage people to see a promising career path in eDiscovery; we can’t all be Laura Kibbe or Andrew Sieja, but we can see opportunities in this young and growing business area.

NLJ’s inaugural list of 50 Business Law Trailblazers and Pioneers

Most recent of the articles is the National Law Journal’s inaugural list of 50 Business Law Trailblazers and Pioneers (you see where I got the Wild West imagery from).

This, as its name implies, is concerned with the practice and development of the wider legal scene; I am not sure that electronic discovery would have rated a mention in such a list ten or even five years ago.

Epiq - Laura KibbeOne of the people on the list is Laura Kibbe (pictured left), a Managing Director at Epiq Systems, whose career, summarised in this Epiq press release, has encompassed all sides of the eDiscovery battlefield – as outside counsel, in-house counsel, and currently as Head of Expert and Professional Services for Epiq’s eDiscovery business. I have the pleasure, from time to time, of sharing platforms with Laura, most recently in Hong Kong last year. Not everyone in this industry has the ability to explain lucidly what are the business benefits (as opposed to the pure technology benefits) of eDiscovery tools and processes. Laura has this ability, and it is always a pleasure to share a platform with her. Read the rest of this entry »

LexisNexis Counsel to Counsel Forum – lawyers staying close to the business and its information

January 15, 2014

My title reflects two themes of interest (that is, they interested me) at the LexisNexis Counsel to Counsel Forum 2013 which took place in Brighton in November. One was about lawyers (whether internal or external) understanding the business for which they work; the other was about social media as a means of keeping in touch with the rest of the world. The obvious thread between these subjects was awareness and connection, and about knowing of and being known by others.

RecommindI was there to join Nick Patience of information management provider Recommind to talk about applying information management technology to business challenges, to proactive risk analysis, to eDiscovery / eDisclosure and to early assessment of litigation and investigations (I’ll stick to “eDiscovery” after this – the venue may have been in the UK but the principles apply everywhere, and everywhere else talks of “discovery”).

The first part of this article covers the value of communication between lawyers and the business, generally and in the specific context of information governance. A second part will report on the social media session itself. Read the rest of this entry »

Mitchell and relief from sanctions under CPR 3.9 Part 3: eDisclosure compliance

January 10, 2014

Two preceding articles have considered the implications of the Mitchell judgment, one in general terms and one more specifically, with a look at alternative approaches which we might see from the courts.

This third post looks at what the disclosure obligations actually are by reference to rules and cases – not a rule-by-rule analysis, but pointers to sources whose primary focus is on properly reducing disclosure or on the level of competence expected of lawyers (and judges, perhaps). There is probably room for a fourth post concentrating on what might be done to avoid getting into the position where deadlines might be missed.  You have had enough words on this for now (and if you have not, I certainly have) so I will do this bit in the shortest form possible.

There is only so much value in squealing that the sky is about to fall in. Let us accept that strict enforcement of compliance with the rules is a fixed policy of the senior judiciary; what is needed is a is a cool analysis of what is required to avoid the kind of conduct which gives rise to sanctions in the first place. Consistent with my general approach, I try to look at it in more positive ways than merely “How do you avoid breaches?” – that defensive benefit is a by-product of getting it right.  “Getting it right” in disclosure terms includes producing the minimum consistent with the duty to court and client – the court calls it “proportionality”; the client calls it “value”.

Rules and cases

Do read the bloody rules – not just those added in 2013 but those which preceded them and which are still in force. Between them, they offer a code which, properly used, allows you to limit the scope of your own disclosure and to enforce limits on the disclosure of your opponents. “Allows” is actually the wrong word – these rules positively require you to reduce the scope of disclosure and require judges to police that with the “active management” which has been expected of them at least since 1999. Read the rest of this entry »

Mitchell and relief from sanctions under CPR 3.9 Part 2 – is Mitchell the last word?

January 6, 2014

This is the second of (at least) three sequential posts about different aspects of the Court of Appeal’s decision in Mitchell v NGN. The first was called Mitchell and relief from sanctions under CPR 3.9 Part 1 – cock-up or conspiracy? and looked at the context in which this judgment is set. This one looks at the problems which the judgment gives and at some of the ideas which have been canvassed to mitigate its effect, not least as a result of some other judgments.

The preceding section is really aimed at those who seek a simple answer to a multi-layered and complex set of problems. Blaming Jackson lets us off having to think about the real issues here, as do easy blasts about right-wing conspiracies (and in case you missed the point, my references in that post to Blair, Brown and Balls were a deliberate descent into the sandpit of easy political name-calling. I mean every word, but it does not help us fix the problem in hand, which is the decision in Mitchell).

The problem, and one which Mitchell exacerbates (deliberately, so far as one can tell), is that there now appears no gap between damaging incompetence and the kind of oversight and inadvertence which any of us might commit, nor is any relevant distinction drawn between very big cases in specialist London courts and small ones in provincial county courts. Quite apart from any differences of scale, there is a reason why some judges get elevated to the Court of Appeal and others do not. Read the rest of this entry »

Steve Couling of kCura turns sweat into cancer support

January 5, 2014

Steve Couling represents kCura in the UK and Europe. I knew him for a long time without realising that he engages in extremely arduous challenges for charity.

Steve is raising money for Macmillan Cancer Support and his fund-raising page, Couling’s 12 in 12, can be found here. It includes the list of completed activities. Just reading the list of his 12 challenges in 2013 is enough to make me tired.

No one-trick pony he – running, swimming, biking, paragliding, jumping from great heights and crawling through mud all appear on in his list. Just travelling to some of these places would be enough for most of us, never mind participating in the events.

We need to encourage him, not least because we want to encourage him to double his exertions in 2014. Please go to Steve’s fund-raising page and help support a worthy cause.

Couling1 Couling2


Mitchell and relief from sanctions under CPR 3.9 Part 1 – cock-up or conspiracy?

January 3, 2014

One of the many advantages of not being a journalist is that I do not feel the need to react immediately when major developments occur. The news in November that the Court of Appeal, led by the Master of the Rolls, Lord Dyson, had upheld Master McCloud’s judgment in Andrew Mitchell v MGN prompted a flood of articles and comment ranging from the apocalyptic and apoplectic at one extreme to “What did you expect?” at the other.

If you missed it and want to hurry on to something else, the judgment’s narrow effect is that the failure by Mitchell’s solicitors to file a budget in time leaves him entitled to recover only his court fees if he wins; the wider effect, or so it seems, is affirmation of a policy requiring that any procedural defect except the most trivial is likely to result in severe sanctions which, actually or in practice, drive the defaulting party out of the court.

You might like to pause here and go and check the time limits on all your cases. As a rough guide, knock a day off every deadline just in case you miscalculated, treat every order as a peremptory order (see Gordon Exall’s Civil Litigation Brief on this as on anything to do with sanctions and deadlines), check whether the order says “exchange” or “serve on each other”, and make sure you don’t have square brackets in the wrong place in any document. Oh, and check your professional negligence policy. All done? Welcome back. Read the rest of this entry »

A reporting hiatus in a bustling eDiscovery / eDisclosure world

December 18, 2013

You may have noticed that my written output has slowed down a little recently. Before somebody writes in to ask why (they do, you know) it may be worth giving a few lines of explanation. Put briefly, UK procedural developments have hogged the limelight, whilst conference events, big issues like privacy, and the daily flow of press releases keep on coming. Those of us who are interested, in whatever capacity, in developments in electronic disclosure / eDiscovery, in case management, in information governance and in data privacy can hardly complain.

The big subject in the UK at the moment is the fall-out from the Court of Appeal’s judgment in Mitchell v NGN (case report here). Whilst this may appear to be a narrow point to do with a defined penalty for a specific failure, the Court of Appeal took the opportunity to send out much broader messages about the court’s policy on default.

Screen Shot 2013-12-18 at 11.10.44

The result has been a flood of articles and opinions, the majority of which have attacked the judgment. There is plenty to attack, but the blunt fact is that we are where we are. We can criticise the policy direction, but there are cases in hand, case management conferences coming up, and decisions to be made in the climate as we find it.

Trying to write about all this requires a degree of focus and concentration which is quite hard to find as articles by others fly in and as we hear of the first of the post-Mitchell judgments. On the whole, I write for the future and not for tomorrow, and I would rather take my time over my article (articles, as I think it will be, one on the context and one with some practical suggestions relating to electronic disclosure).

Screen Shot 2013-12-18 at 11.06.46

If you want to start catching up with what is being said, turn to a list of relevant articles made on his excellent Civil Litigation Brief by barrister Gordon Exall. There is some good stuff in there, but some inevitable repetition between the many contributors to the discussion. There must be a text analysis app which could identify unique points and produce a summary. Read the rest of this entry »

Cicayda, kCura and Huron Legal in one trip – 3 – Relativity Fest and Huron Legal in Chicago

December 3, 2013

This is the third of three posts in which I tell of a trip to Nashville and Chicago in October with my son William. I took part in events or meetings with the three companies named in my title – Huron Legal, kCura and Cicayda. The first part of this three-part post is here and the second is here. This one covers Chicago, where I spoke about predictive coding at Relativity Fest and had a meeting with Huron Legal. We also saw something of Chicago and ate at the Purple Pig.

Ballroom at Relativity FestRelativity Fest is a large annual gathering of Relativity resellers, users and would-be users who assemble in Chicago each year for a mixture of hands-on training, a glimpse of new developments and road maps, and a solid series of educational talks and sessions which are either about the use of Relativity or about the context in which it is used. I was there to take part in the predictive coding panel which closed the conference.

I try and avoid doing closing sessions if possible; many delegates seem to deduct them automatically from their schedule, heading for the airport whilst hapless speakers talk to empty rooms. My heart sank even further when I discovered that the venue was one of those vast ballrooms in which the stage is barely visible on the horizon, compensated for, if that is the right expression, by the projection of each speaker’s face on a giant screen. I needn’t have worried – the room was packed. Read the rest of this entry »

Welcome to Iris Data Services as a sponsor of the eDisclosure Information Project

November 22, 2013

iris-data-services-logo-e1338417090529IRIS Data Services, a Kansas-based eDiscovery services provider with a world-wide footprint, has now opened in London. I am very pleased to welcome Iris as the latest sponsor of the eDisclosure Information Project.

IRIS was established in 2007 by President Major Baisden and VP of Sales Damon Goduto. It offers litigation support and eDiscovery services both on a per custodian, case-by-case basis and as managed services. One of its clients says of the latter that it “allows us to spend less time managing vendors and litigation technologies and more time doing what we do best, practising law”.

A quick look through the very comprehensive Iris web site shows a focus, above everything else, on data reduction, on project management and on costs control. It offers a range of culling options depending on requirements, all with the intent of reducing the volumes for review. Once culling is complete and volumes reduced, Iris applies some of the best tools in the market – Nuix, Equivio Near-duplicates and Email Threads, Relativity Analytics and Relativity Assisted Review (predictive coding) among others – to reduce volumes still further and to prioritise the documents so that the lawyers see them in order of presumed relevance.

The emphasis on project management and on predicting, controlling and tracking costs recurs throughout the Iris web site – if clients value lower costs (as they obviously do) they value also the absence of surprises which comes from predictions made by people who do this sort of thing all the time. Read the rest of this entry »

Cicayda, kCura and Huron Legal in one trip – Part 2 – with Cicayda in Nashville

November 21, 2013

This is the second pPlane to Nashvilleart of my account of a trip to the US in October. My son William and I went to Nashville and Chicago where I took part in events or meetings with the three companies named in my title – Huron Legal, kCura and Cicayda. The first part of this three-part post is here. This one covers Nashville and what I said about US and UK eDiscovery / eDisclosure at Cicayda’s un-conference.

So William and I flew to Chicago, stayed a night there and went on down to Nashville. We arrived on a wet Sunday; the entire city seemed to be watching some game or other in a sodden stadium; public museums were closed thanks to the shutdown and we could find nowhere to buy anything resembling the European idea of an espresso. (All was forgiven on that front, incidentally, when we eventually found a cafe with the finest espresso I have ever come across in the US; if that sounds a bit like “the warmest place in Greenland” or “the funniest man in Germany” it is meant to, but it tasted good).

Things brightened up in the evening, when Cicayda entertained all the speakers at a first-rate dinner. I shared a table with the energetic and ideas-filled Eric Hunter, with Jason Cox (Cicada’s CTO and someone I have known since his days as a co-founder of Case Logistics), with Charles and Jane Christian from Legal IT Insider, and with William. Our theme, as I have recorded elsewhere, and unsurprisingly given the company, was how to reconcile lawyers to a future which they could not avoid despite their best endeavours.

You would not expect an un-conference to take place in a conventional conference centre. “Just walk across the Pedestrian Bridge”, they said, taking for granted that one would know what they meant. This was a rather more interesting journey to a conference than going down into the basement in the elevator, as one usually does. Mist swirled around the Pedestrian Bridge (our venue was the building at the far end of the bridge): Read the rest of this entry »

Social media analytics give encouragement to eDiscovery / eDisclosure lawyers

November 21, 2013

One of the difficulties in trying to persuade lawyers to adopt (or even consider) the use of technology is that they are chary of anything new. Another is that they think that their work is somehow “special”, depending on those hard-earned professional skills and not susceptible to the same solutions as everything else. It helps, perhaps, to see how analytics technology supports and enhances other industries, helping the same people to give better service at lower cost – an enabler of their skills, not a substitute for them.

I wrote recently about tracking social media for eDiscovery / eDisclosure purposes. This article expands on that theme with a look at technology developments which are specifically designed not just to track social media but to draw conclusions from it. Drawing conclusions is lawyers’ work, I hear you say. So it is, but with time and cost in mind, lawyers need all the help they can get to unearth sources which may confirm or undermine their conclusions, or point them towards things they hadn’t thought about.

XeroxXerox is a mighty corporation whose technology interests go much wider than the eDiscovery which is my particular interest. Xerox Litigation Services is but one of the Xerox divisions, one which applies 75 years of Xerox technology research and development to a specific field. There is an obvious link from the predictive and analytical tools which Xerox develops for non-legal purposes through to CategoriX, the predictive and analytical tool which Xerox Litigation Services applies to eDiscovery. Although I use Xerox Litigation Services as the model here, the principle – that ideas developed for one industry have purposes in others – applies more widely.

The Xerox Litigation Services blog continues to provide good reading for those interested in eDiscovery. Recent articles include one about the particular implications of reviewing Mac data on a PC platform, and one on specific regulatory and compliance challenges arising from Dodd-Frank; others cover data security implications for law firms, and the use of technology assisted review. This is a site worth bookmarking for a wide range of eDiscovery topics.

The article which attracted my attention today, however, is not specifically about eDiscovery. It comes from another division of Xerox and is called Xerox tackles big data challenge: social media analytics is great, what should I do with the info? The page name (which is what caught my eye in Google), is Xerox finds true meaning in social media analytics. “True meaning” goes well beyond keywords; when lawyers read documents, they look for “true meaning” rather than particular words, though they may use the words as triggers pointing to meaning. Why not use technology to steer them towards documents whose “true meaning” points them towards the things they are interested in?

The article is about the development at Xerox Research Center of an automated data analytics platform which teaches computers to draw conclusions to evaluate the sentiment of comments beyond the mere meaning of the words. The commercial objective behind this is the ability to route customer comments quickly to the right place and with an appropriate degree of urgency. This requires an evaluation of context as well as the literal content of a tweet, blog post, Facebook entry or other source of comments.

This involves text mining, machine learning and predictive modelling which helps determine whether there is an issue or an opportunity which to be dealt with quickly and by the right person.

What has this to do with eDiscovery / eDisclosure? Well, for one thing, having documents “dealt with quickly and by the right person” is the key to efficient discovery. If the ability to include documents containing the word “project” or exclude those which include “football” is important, what about those whose language plus context indicates a conspiracy or fraud? Those planning to conspire or defraud tend not to use those words in emails – and any half-clever would-be fraudster won’t be using email anyway as newer channels – chat, Facebook, Twitter or LinkedIn – appear to offer less traceable communications. The analytical tools might, incidentally, suggest that some documents containing “project” are nothing to do with the issues and that “football” was a code word for something nefarious.

At a simple level, those same social media pots are as important a source of potentially discoverable information as Word files and emails, and the lawyer who neglects to investigate such sources may find that he or she is in breach of a duty owed to client, opponents or court; perhaps more importantly, he or she may actually have missed some evidence which matters. Given the ever-increasing volumes and the diversity of sources, it becomes important to handle all this proportionately, and any tools which can mine relevant data sources quickly and accurately can help in the battle between completeness and cost. The research being undertaken by Xerox for customer-related items has obvious application for this aspect of discovery. Read the rest of this entry »

Cicayda, kCura and Huron Legal in one trip – Part 1: setting the scene

November 20, 2013

I was not intending to go to the US in October. September included a trip to Hong Kong and a holiday. October had several UK engagements in it as well as a conference in Prague. The potential US events – kCura’s Relativity Fest and the EDI Leadership Summit – were just too far apart to sweep up both in one trip and, as one does when confronted by difficult choices, I had chosen to attend neither.

Then Cicayda signed up as a sponsor for the eDisclosure Information Project and announced that they were holding a conference (or un-conference as they called it) called RELEvent in Nashville on 7-8 October – the same days as Relativity Fest in Chicago. The apparent conflict became an opportunity to maximise the value of the flying time when kCura asked me to take part in its predictive coding panel at Relativity Fest and I decided to drop in also to Cicayda’s event. At the same time, Jon Resnick of Huron Legal mentioned in passing that Huron Legal’s senior management team was meeting in Chicago on 10 October; I said I’d look in. What had been an empty week suddenly became a rather busy one. My son William, who does my web site and videos for me, was free that week and off we went.

This article is a mixture of things – an account of the trip, summaries of what I talked about, and something about the very different players who were my hosts, with odd bits of travelogue thrown in. If that is not to your taste, I am sure there are some product brochures, case reports or court rules you could be reading instead. I have split it into three parts to maximise the possibility that you will read to the end. Read the rest of this entry »

Second Annual New Zealand eDiscovery Conference on 19 March 2014

November 19, 2013

New Zealand is quietly getting on with improvements to its civil procedure rules, supplementing its Discovery Rules of 2012 with a new Electronic Bundles Practice Note.

Andrew King of eDiscovery Consulting in New Zealand has announced the date for the Second Annual New Zealand eDiscovery Conference following the success of last year’s inaugural event. It is 19 March in Auckland.

There is an article about it here. It is being run in conjunction with Ernst & Young and the speakers include Browning Marean from DLA Piper US and His Honour Judge David Harvey.

I had just committed to being in the US in that week when I found about this event, and will not be able to attend – a pity, since New Zealand has been active in the development of good eDiscovery practice, and Judge Harvey is one of the leading judicial thinkers on electronic discovery, electronic evidence, and the use of technology by lawyers and courts. Here is a link to an article which introduces and links to his paper Judging e-Discovery Disputes, which he presented at the Courts Technology Conference 2013 in Baltimore (I aim to write properly about this when the tide goes out a bit).

If I cannot be in New Zealand in March, my consolation is that I may instead get to the other jurisdiction of growing interest in eDiscovery terms, Canada. I wrote recently about the document review centre which Epiq Systems have just opened in Toronto, and that and other factors suggest that a visit to Canada is well overdue.

Perhaps I will make it to New Zealand in the following year.


Tracking social media for eDiscovery / eDisclosure purposes

November 18, 2013

To an audience still struggling with the idea that an email is a “document” for eDiscovery / eDisclosure purposes, it comes as something of a shock to be told that a tweet or an entry in Facebook or LinkedIn is potentially no less discoverable than a Word document.

I have been writing and talking about this for some time now, most recently in a webinar with iCONECT called Social Communication: is there anything worth requesting? I covered it again at ILTA INSIGHT (the Agenda is here) in London on 14 November on a panel called Non-traditional sources of electronic evidence in the company of Fiona Morrisson of Allen & Overy and barrister Damian Murphy.

Reading around the subject in advance of the iCONECT webinar, I came across an article on the ABA Journal web site called 6 Tools to Help Firms Track Social Media. It referred to a Fulbright conclusion that more than 41% of US law firms reported having to preserve or collect social media data for eDiscovery purposes. Whilst it is true that US lawyers collect anything which moves and much more besides, the rest of us have to accept that the growth of social media, and the shift of communication from email to more volatile forms of communication, must inevitably take discoverable information with it.

The range of platforms which carry such communications grows every year. Ralph Losey is quoted in the ABA Journal article as saying that Facebook, LinkedIn and Twitter are the ones which matter. Read the rest of this entry »

Bringing the right tools and methods to the eDiscovery madness

November 12, 2013

There are, we know, still many lawyers using some rather basic tools to undertake eDiscovery exercises. Adam Rubinger of NightOwl Discovery, in an article called A Method to the Madness tells of organisations using spreadsheets and emails to collect and search the raw data of eDiscovery / eDisclosure. Go ahead; make my day, as their opponents will perhaps be saying as they stand by to bring applications or motions to compel proper disclosure / discovery.

I was told recently of an English law firm who was proposing to make searches in Outlook, and to record the results in Excel or Word lists for what sounded like a fairly substantial case in which disclosure was critical. The other side was intending to use a combination of Nuix and Relativity with the aid of an external services provider. The start-up costs of the latter approach will probably not be trivial, but I wonder what costs will be run up by the Excel-and-Outlook user – indeed, whether any budget calculation has been made on that side at all. If not, how can any cost comparison be made, quite apart from any questions about the adequacy of the search, the completeness of the disclosure, and the negotiating position of the user?  Read the rest of this entry »

What have the futurists ever done for us?

November 5, 2013

The agenda for ILTA INSIGHT in London on 14 November includes a full programme designed to appeal to legal practitioners in every area of practice. There is also a speech by legal and business futurist Rohit Talwar. What can we learn from those who predict the future developments in legal practice?

Those for whom my title means nothing may care to search Youtube for the phrase in my title, substituting “Romans” for “futurists”.

One of the speakers at the excellent ILTA 2013 in Las Vegas was legal futurist Rohit Talwar. Such people provoke strong reactions, ranging from the complete conviction that law firms and legal departments must learn to adapt to change, via “some of it was quite mad, you know” (as somebody put it to me), and on to outright scorn for such predictions and for the people who make them.

I touched on this in a long article called The Ghost of Legal Services Yet to Come – a Futurist tells of things that may be which discussed a speech which Rohit Talwar made in Hong Kong earlier this year. I said:

“These futurists are all very interesting, but I want to know what my firm should do now”. This is the common cry of those who attend talks by those who anticipate business trends. I do not particularly like the label “futurist” because it somehow implies too much science and not enough flesh and blood, but that is how Rohit Talwar describes himself, and there was certainly more than enough of the human in his talk.

Professor Richard Susskind, another who tells us where we are going to be, is well aware of the difficulties of, as he puts it, “telling a roomful of millionaires they have got their business model wrong”. It was Susskind who told us, 20 years or so ago, that lawyers would communicate with each other and with clients via email and that they would put law up on their websites for anyone to read for free. These futurists, eh? Read the rest of this entry »

Moving forward with eDiscovery in the Hong Kong civil courts – the Epiq Systems / ALB Round Table

November 4, 2013

I have reported briefly in earlier articles the round table which I moderated in Hong Kong on 13 September at which leading eDiscovery lawyers assembled at the invitation of Epiq Systems  and Thomson Reuters’ Asian Legal Business to discuss the discovery in the civil courts. Celeste Kemper, Director of Epiq’s Document Review Services Asia was in the chair.

HKRoundtableEpiq Systems / Asian Legal Business eDiscovery Round Table (photo by ALB)

The main interest lay in plans by the Hong Kong judiciary to produce an eDiscovery practice direction based on Practice Direction 31B used in England and Wales since 2010. A consultation draft is expected before the end of 2013.

We now have a report of that round table from Asian Legal Business in an article called eDiscovery: Wheels in motion for HK which passes on the key points made by some of the those who were present. The article is here and the whole issue of Asian Legal Business can be downloaded here.

Although Hong Kong civil procedure is largely based on that of England and Wales, the Practice Direction of 2010 (I was a member of the working party which drafted it) is part of a sequence of developments which began with the new Civil Procedure Rules in 1999. One of the key differences is the definition of a disclosable document – Hong Kong retains the Peruvian Guano test of relevance which, like the US Federal Rules of Civil Procedure, is very wide; the test in England and Wales is whether the document is supportive of or adverse to the case of the giver or any other party and that, and other rules designed to limit the scope of disclosure are picked up and expanded in PD 31B. Read the rest of this entry »

ILTA brings Insight to legal technology in London on 14 November

October 29, 2013

I am an unabashed enthusiast for the International Legal Technology Association, ILTA, whose big US conference every year is one of the high points of my (over-full) conference calendar.

It has three key elements which are critical to lawyers everywhere – the high quality of its sessions, the peer-to-peer principles of shared understanding and knowledge which are fundamental to its foundation, and the opportunity to supplement the formal exchange of shared knowledge with informal networking. It is a catalyst for ideas – which is why my post in advance of the main show in Las Vegas was called Catalyst for ideas at the ILTA annual conference in Las Vegas.

ILTA InsightAll that comes to London (shorn of some of the side-attractions which Las Vegas offers) on 14 November with a one-day event, ILTA Insight 2013, at the Grange St Paul’s Hotel which offers a packed programme and the other things mentioned above in exchange for a registration fee of – zero.

The Agenda is here. The discovery-related sessions include one called the Ins and Outs of information governance, one called Budgeting and eDisclosure, and my own one called Non-traditional sources of electronic evidence.

Other subjects include artificial intelligence, cybersecurity and mobile working, document collaboration, the ever-developing subject of BYOD (Bring your own device) and the use of social business tools in legal practice.

In addition, there is a keynote by futurist Rohit Talwar in which he shares the findings from ILTA’s Legal Technology Future Horizons Project, a discussion about how businesses have adapted to change where others have not, and discussions about the route to the future from now.

The Co-Chairs are Janet Day, IT Director at Berwin Leighton Paisner, and Gareth Ash, CIO at Allen & Overy. The majority of the speakers are people who get their hands dirty daily within law firms and who are willing to share their experiences.

My own primary aim in going, apart from the sessions in which I am participating, is the opportunity to talk and listen to the people who have the problems and those with the experiences of solving them.

Registration, as I say, it’s free. It is, of course, necessary to register your intention to attend – you can do that here. I hope to see you there.


Raising your game – Casey Flaherty’s technology competency audit and Neota Logic

October 26, 2013

Although I am quite capable of sourcing and writing up my own original material, that is not always the practical nor the best service I can offer you. If someone else has written an interesting article, it makes more sense to point you to that rather than add to your reading burden (to say nothing of my writing burden) by trying to find a different way of saying the same thing.

The current issue of Charles Christian’s Legal IT Insider – the Orange Rag – has two stories which are worth passing on. On the face of it, they are very different – one is about Casey Flaherty, corporate counsel at Kia Motors America, and his exposure of law firm ineptitude at basic computer tasks; the other is about Neota Logic and its applications designed to solve problems in law, compliance, risk management and other fields of expertise. They are both indicators of the way the world is going. In a sense, this post is not really about either spreadsheets or Neota; these are merely opposite poles in the range of tools which exist to help lawyers provide a higher, quicker, and more consistent level of service to clients. My real interest, of course lies between these extremes, with the wide range of eDiscovery support tools for collection, analysis and review, from keyword searches to predictive coding.

The lead article in the current Legal IT Insider is headed Kia tells law firms to teach lawyers IT. It retells the by now well-known story of how Casey Flaherty challenged law firms to teach their lawyers some basic IT competence. At a simple level, Casey Flaherty believes that clients are being overcharged because lawyers are taking too long to perform basic functions and then recording the time to the client. Here is one of the many articles about the technology competency audit. Read the rest of this entry »

Using EXIF GPS information from a camera in eDiscovery / eDisclosure

October 25, 2013

The product description of Guidance Software’s EXIF GPS Information Reader helps explain why your camera may be recording more information you think. You need a) to remember to think about it b) to know that it is capable of collection c) know someone who knows how to collect it and d) apply the brain to interpreting and evaluating it.

A subject which recurs at the moment is the data which is created by the devices which we carry around with us and which may be secretly recording our every move. “Secretly” does not necessarily imply an NSA operative silently capturing our “I’m on the train” messages, nor shysters running social media sites in order to sell our souls to other shysters for marketing purposes, but may include basic information which records where we are, primarily for our own use (even if we don’t know it is there).

This was covered in a webinar called Is there anything worth requesting? which I did recently with iCONECT (the webinar itself is here ) and at a panel in Prague. It also turns up in a useful article by Sharon Nelson and John Simek called Metadata in Digital Photos – should you care? which includes the story of fugitive software boss John McAfee, who was tracked down to Guatamala by the EXIF information captured by a journalist’s camera.

I do not usually post technical documents of the kind which are aimed at those who actually work with the data. I make an exception for Guidance Software’s EXIF GPS Information Reader which I came across in the EnCase App Central catalogue. Read the rest of this entry »

Budgets, costs and sanctions in England and Wales – links to some good reporting

October 17, 2013

One cannot hope to keep up with everything which is going on in consequence of the Jackson reforms to civil procedure in England and Wales. They took effect on 1 April and we are seeing a move from judgments which reflect the transition – where a certain amount of latitude was to be expected from judges – into the tough new area established by the new Rule 3.9 relating to relief from sanctions. Even now (and as one would hope) not all the judgments result in disaster for the party in default.  I make no apology for relying on, and referring you to, articles by others – there is now some high-quality and timely reporting and commentary on cases and I do you better service by pointing you to it than inventing my own whilst simultaneously covering the US, Hong Kong and other places.

The big one here is the “Plebgate” judgment about which I wrote here and here. The appeal by Andrew Mitchell MP comes before the Court of Appeal shortly and Twitter is rife with rival views as to the likely outcome. Litigation Futures carries an article called Regan: CA will uphold Plebgate budget ruling which reports on Professor Dominic Regan’s certainty that the Court of Appeal will uphold Master McCloud’s judgment and deny Mitchell relief from sanctions. There are those with the opposite view, however, and it has been interesting seeing learned barristers and academics trading views on Twitter.

Rachel Rothwell’s article in the Law Society Gazette headed Jackson: we’ll hear from appeal court soon has collected a number of comments which summarise the arguments one way and another, including many points made about whether the outcome of CPR 3.9 judgments is just – a rather different question from whether they are correct.

I have referred before to the excellent Civil Litigation Brief produced by barrister Gordon Exall. You may be interested in his article Striking out for abuse of process: the need to advise clients to preserve evidence. This concerns Matthews v Collins, where the widow of a victim of industrial disease gave authority for histology samples to be destroyed without advice. Read the rest of this entry »

Barrister Damian Murphy sets up chambers dedicated to eDisclosure

October 16, 2013

Barrister Damian Murphy has resigned from Enterprise Chambers to set up his own Chambers, Indicium Chambers, focusing exclusively on electronic disclosure. There is a Lawyer article about this interesting development here.

I am doing three events with Damian in the next few weeks, details of which you will find at the end of this article.

You may like to look back at a very long article which I wrote in May called Breaking the dam: barristers moving in to eDisclosure which is a report of IQPC’s Information Governance and eDisclosure Summit in London. Quite a lot of my article is devoted to the potential role of barristers in the management of eDisclosure. One of the quotations with which my article opens came from Damian Murphy – his “Look judge, here’s an idea” seemed to me to reflect exactly the opportunities which the new case management rules give to lawyers and judges to work within the rules to find inventive approaches aimed at focusing on what really matters.

We have to get away from the idea that eDisclosure / eDiscovery is just a set of mechanical processes. Its purpose is to find evidence and to build a narrative, and the CPR offers plenty of opportunity to leave the junk on one side and focus on what matters whilst yet complying with the duties of candour implicit in the disclosure obligations. Project management skills are vital (and Damian Murphy’s CV includes them), but the process is not the objective. Read the rest of this entry »

TeCSA to run eDisclosure in Practice day on 1 November

October 8, 2013

TeCSA, the Technology and Construction Solicitors Association, is organising a day’s training session on 1 November with the title eDisclosure in Practice. The flyer is here.

The agenda aims to introduce the proposed new TCC eDisclosure Protocol and provide a legal update, providing practical and technical know-how to practising lawyers of every level on all aspects of eDisclosure. It is open to all who practise as a solicitor or barrister in the Technology and Construction Court.

The keynote speaker is Mr Justice Stuart-Edwards. Simon Tolson of Fenwick Elliott and Stephen Williams of Nabarro lead the lawyer input backed by several others from leading law firms. Technology input comes from Andrew Haslam of Allvision, Mike Taylor of i-Lit and from me.

The venue is Berwin Leighton Paisner LLP, The Auditorium, Adelaide House, London Bridge London EC4R 9HA and the day runs from 8.30am to 5.30pm. The cost is £100 which covers course materials, lunch and refreshments. To reserve your place, please send a cheque drawn in favour of TeCSA to: Lisa Kingston, Fenwick Elliott LLP, Aldwych House, 71-91 Aldwych, London, WC2B 4HN


Jason Baron joins the Drinker Biddle information governance and eDiscovery team

October 7, 2013

It is not often that I pay much attention to deadlines and embargoes. If the story won’t matter in a month’s time then it is not worth writing about now. Equally, I have not hitherto written much about what goes on within law firms, most of whom are merely users and consumers of electronic discovery rather than influencers and agents for change.

I make an exception today, because Drinker Biddle & Reath LLP has boosted its information governance and eDiscovery group by appointing Jason Baron as Of Counsel based in the firm’s Washington DC office. I predicted great things for the Drinker Biddle IG team, but I did not see that one coming.

Jason Baron has long been Director of Litigation at the National Archives and Records Administration (NARA).The holder of that post will always be important in the eDiscovery world simply by virtue of his or her position, with its responsibility for the enormous volumes of email and other documents which government creates.

Jason has done much beyond the call of duty. He represented NARA as co-chair of the Steering Committee of the Sedona Conference Working Group on Electronic Document Retention and Production, and has served as editor-in-chief on three Sedona commentaries. He was also a founding coordinator of the US National Institute of Standards and Technology TREC Legal Track.

I have heard him speak several times, always with authority and a refreshing new angle. It is not easy to be simultaneously authoritative and challenging – authority generally equates to responsibility, and responsibility usually implies a conventional approach; Jason makes responsibility sound interesting – something which will matter in his new role. Read the rest of this entry »

The Future of US-style Discovery from a UK perspective

October 4, 2013

I am giving three talks during my trip to the US next week. The first of them is at Cicayda’s RELEvent – the un-conference at Nashville and has the title The Future of US-style Discovery from a UK perspective.

I did not choose this title – I usually find out what I am doing at conferences by reading the agenda – but it is an appropriate one. I first went to the US, in 2007, because I found myself continually meeting in the UK the argument “Oh, electronic discovery is what Americans do, and look what an expensive mess they make of it”. It seemed right to go and find out before accepting or rejecting the conventional wisdom; what I found was that the view from that side was equally nonsensical – the curious idea that “the US is two years ahead of the UK”. The second reason why it is appropriate to revisit that subject now is that the US is contemplating changes to the Federal Rules of Civil Procedure. Whisper it, but some of those changes, if passed, will bring US eDiscovery more in line with the UK approach.

I use the word “approach” advisedly, because the practice as it has developed in the US, and particularly since the 2006 Amendments to the Federal Rules of Civil Procedure, has not accurately reflected the intentions of the rulemakers. There was enough in those rules about cooperation and about proportionality and it was all blown out of the water by Judge Scheindlin’s opinions in the Zubulake case. I have written enough about this in the past, but my broad theme is that a defendant which deserved all it got in that case caused a precedent (in the wider sense of that word) which led the US into enormous expense and waste of money, as all the cases which followed were treated as if every giving party had something to hide and was hiding it.

I will not expand on that here, but I have been reading around the subject of the new rules as part of my preparation for this panel. You may be interested in some of the articles which I have been reading. Read the rest of this entry »

Article from Mayer Brown JSM on eDiscovery developments in Singapore and Hong Kong

October 4, 2013

For those who missed it, I referred in a recent article to plans by the Hong Kong judiciary to bring forward a practice direction for the management of electronic information in civil proceedings, starting with the Commercial List.

As I said in that article, my source of information about this is Menachem Hasofer, a partner in Mayer Brown JSM in Hong Kong. Menachem Hasofer is, with others, the author of a useful summary of eDiscovery developments in Singapore and Hong Kong which is recent enough to include reference to the proposed Hong Kong practice direction.

I have been spending more time in Hong Kong than in Singapore recently. I hope that opportunity will arise shortly to redress the balance and pay another visit to Singapore.


Post-Jackson “Unless orders” – Guidance relevant to eDisclosure

October 4, 2013

I have referred elsewhere to the Civil Litigation Brief, a blog about procedure, limitation, Default and the Civil Procedure Rules by Gordon Exall, barrister, of Zenith Chambers in Leeds.

Gordon Exall has just published an article called Have you complied with an “Unless order”? Guidance in the context of the disclosure which, as he says in opening, relates to an order for eDisclosure which contains lessons of general relevance.

The “case in point” with which Gordon begins is Re Atrium Training Services Ltd in which the question arose as to whether an order for disclosure by a certain date had been complied with. There was a separate question as to the form of the list.

In considering Atrium, Gordon summarises all the principles which relate to disclosure and as to whether disclosure had properly been given – on which turned the question whether the party should be struck out. The article provides a pretty full statement of the principles and the rules which apply to questions about eDisclosure scope when they meet the new stringency of the post-Jackson regime.

The article should be kept close at hand by anyone involved in disclosure disputes.


Hong Kong judiciary working on a pilot scheme for management of electronic documents

October 3, 2013

I mentioned when I got back from Hong Kong that the eDiscovery roundtable organised by Epiq Systems and Asian Legal Business had been told of an interesting development – that the Hong Kong judiciary are working on a pilot scheme for the management of  electronic documents.

This was brought to us by Menachem Hasofer, a partner at Mayer Brown JSM, one of the most active law firm promoters of proportionate eDiscovery in Hong Kong.

There has not been any formal announcement of this work, but the following wording has been approved for release:

“The Hong Kong Judiciary is actively engaged in creating a pilot scheme for discovery and inspection of electronically stored documents in the Commercial List. The pilot scheme is expected to be implemented by way of a Practice Direction (PD) to be issued in the first quarter of 2014. Preparation of the PD is presently a work in progress. The Judiciary expects to release a draft of the PD for consultation in the final quarter of 2013, at which time it will hear views from the wider legal profession and other concerned stakeholders on the proposals contained in the consultation draft of the PD.”

This is obviously good news for those who believe that it is very much for the court to take a lead in encouraging the proper discovery of electronic documents within the bounds of proportionality. It makes sense for the pilot scheme to be limited to the Commercial List to begin with.

I look forward to getting involved in the consultation later this year and will bring more news as I have it.


UK court orders disclosure against French party despite Blocking Statute

September 30, 2013

Those who have read my occasional fulminations about US courts ordering discovery in breach of French blocking statutes will recall that much of the argument turns on whether the French will actually enforce the statute by imposing penalties on those who export data. In an article called Cross-Border Discovery – Federal Judge makes a monkey of the cheese-eaters, I put it this way:

…it is perhaps relevant to consider the likelihood that the French will act to enforce the blocking statute. I say “perhaps relevant” because I am not entirely convinced that the “due respect to the data protection laws of any foreign sovereign” lies in the pragmatic assessment that the French will not react. One can illustrate my point this way: a combination of resource cuts and an attachment to their cosy, warm police stations means that the chances of an English policeman arresting a burglar are pretty slim – the actual statistics are the source of much debate and deliberate, self-serving obfuscation, but a career in burglary is fairly risk-free in the UK.  You would not, I think, find a US judge willing to approve of UK burglary on the basis that the police are unlikely to do anything about it.

You may be interested to know that the English High Court has recently considered the same factors, concluding that discovery should be ordered. US lawyers should resist the conclusion that this means that the argument has suddenly become respectable so far as they are concerned. Blocking statutes raise the same issues as the EU-wide data protection and privacy laws, with the difference that they are expressed to be absolute. If all this was a problem before we learned about PRISM, how much worse is the position now?

The case is National Grid Electricity Transmission Plc v ABB Ltd & Ors [2013] EWHC 822 (Ch) (11 April 2013). I am obliged to my friend Browning Marean of DLA Piper US for drawing my attention to it.

The opening sentence leaves us in no doubt as to the central issue:

These applications raise an important question as to the approach the court should take in the light of the so-called French blocking statute, French law No 68-678 of 26 July 1968

This is a complex judgment, full of quotations from earlier cases and the (divided) opinions of the (mainly French) experts whose views are reported. Extracting what seems to be important in sequence will give you a broad idea of the issues. If you want more, you may need some damp towels for your forehead. Read the rest of this entry »

A new chrisdaleoxford web site for eDisclosure and eDiscovery

September 27, 2013

What was supposed to be a proper switch-off holiday turned into Office-by-Sea. One of the results is the new blog / web site which we have been promising ourselves for some time, one of the few so-called “Summer projects” which actually got done (albeit in the Autumn).

Stuck up in our hall at home is a fading cartoon. The first three frames show a businessman on holiday, sitting on a rock on a beach, apparently revelling in his freedom from the office. The last frame, however, has him gratefully saying “Only two days to go”. My wife cut it out 20 years or so ago, when I first started working for myself. It is not at all right to imply that I do not like being on holiday, but the reality of being a one-man business in a busy market is that pushing off for two weeks is not a practical proposition.

Our present holiday was planned months ago, its centrepiece a family wedding, as I have recorded elsewhere. As we booked a Cornish sea-side house large enough for everyone who might show up, my wife muttered something about her probably rattling around in it alone for two weeks with her mother and the dog, reflecting her assumption that “something will turn up” for the other two self-employed one-man-bands and the post-graduate student who comprise our immediate family. I took the hint and duly declined four conference invitations, clearing time on each side to make sure not only that I would make it to Cornwall, but that I could clear the decks before we left and catch up afterwards, leaving the holiday itself completely free for the only real break I was going to get this year.

As I recorded in this post, it did not quite happen like that and, although my wife’s prediction did not come to pass, Hong Kong and US events each side of the holiday, to say nothing of a webinar in the middle, effectively destroyed the possibility of just switching off. It is all good, interesting stuff but the relaxing break – well, maybe next year.

Second-best, if you cannot get out of work mode, is to do those projects which require that you stand back from the daily flow of writing. The long list of such projects included a new website, and that is what my son William and I have been doing in lieu of relaxation, sitting at opposite ends of the kitchen table in our rented house until far into the nights. I described what I wanted, William usually came up with a better idea, and then he got on and did it. Read the rest of this entry »

Hong Kong (again) with Epiq and pending events with iCONECT, Cicayda and kCura

September 18, 2013

I have just been back to Hong Kong, this time to moderate a panel of litigation lawyers brought together by Thomson Reuters’ Asian Legal Business and by Epiq Systems. Epiq’s Celeste Kemper was in the chair.

Our agenda was cut from under our feet as we began our session by the news of pending developments in the Hong Kong civil procedure rules relating to the management of electronic discovery. The ad hoc agenda which followed was very much more interesting as a result. I will write more about this in due course. I also had lunch with Paul Taylor and Barry Wong of Consilio, as good a way as any of keeping up with what is going on in Hong Kong.

I came back in haste (well, 26 hours from door to door), mainly so as not to miss too much of the family holiday in Cornwall. I write this from a kitchen on a windswept headland from which sea and sky merge in varying shades of grey washed down by copious amounts of rain.

Towards Polzeath

It is good to be back here. Most of our holidays recently have been planned around a foreign conference and, whilst we have seen some wonderful (and generally sunny) places as a result, I have missed the Cornish mist. We are here partly because this is where we have always come (in my wife’s case since the 1950s) and partly because her niece is getting married at St Enodoc, an ancient church recovered from the sand in the mid-19C where John Betjeman is buried.

St Enodoc

I wrote with enthusiasm recently about a series of webinars being given by iCONECT whose first one is called Social Communication: Is There Anything Worth Requesting?   Its theme is the prevalence of new data types created by new kinds of device by new applications and which accumulates around us without really thinking about it. The ease with which we can work from anywhere (a Cornish clifftop, for example) brings enormous benefits, but it brings also the risk that we create data that we do not even know we have got in places unknown to us. That raises all sorts of issues, amongst them the eDiscovery implications.

It was, perhaps, a mistake to write so enthusiastically about this webinar, because the immediate reaction was an email from Ian Campbell at iCONECT inviting me to take part in it. The upshot is that I am speaking in iCONECT’s Webinar at 1.00pm EDT on Wednesday 18 September (that is TODAY) in the company of Ian Campbell and Thomas Barnett of Saito Sorenson LLP. More information, with links to the registration page is here.

I think that I have cracked the comms challenges of operating from here. The next hurdle is to keep the holiday house quiet for the hour’s broadcast – I can hardly turn everyone out into the rain.

Two other unexpected invitations came my way just before I left. One is to take part in a predictive coding panel at kCura’s Relativity Fest in Chicago on 8 October. Having committed to travelling that far, it made sense to volunteer also to look into Cicayda’s interesting RELEvent – the un-conference which takes place in Nashville at the same time. Cicayda’s Roe Frazer promptly put me on a panel for Monday 7 October – about what and with whom I know not, but it sounds fun anyway.


Welcome to Cicayda as new sponsor of the eDisclosure Information Project

September 9, 2013

The conventional view has been that there is no room for new players in the eDiscovery market, and that we are moving to a period of consolidation, in which there will be far fewer players.

That conventional wisdom has been upset recently by the arrival of some new and agile players offering eDiscovery software and services. They are distinguished by two things in particular – inventive approaches to pricing and astute use of modern media methods to get their products out to the market.

Few have been as successful at this than Cicayda which appeared, apparently from nowhere, earlier this year. It caught my eye on Twitter before I realised that I knew its CEO, Roe Frazer and its CTO, Jason Cox, from years back when they ran Case Logistix (which is now owned by Thomson Reuters). I wondered from time to time when (not if) they would resurface. Now I know. I missed the opportunity to see Roe Frazer when he came to London a few months ago (I was abroad) and caught up with him at ILTA in Las Vegas. The near-instant consequence is that Cicayda has become the most recent addition to the list of those who sponsor the eDisclosure Information Project. Read the rest of this entry »

Who’s next? Outgun and outrun bigger firms by hiring eDiscovery skills

September 4, 2013

A case in the Alabama Admiralty Court reminds us that if you don’t know what you are talking about, it is a good idea to get help from someone who does. UK solicitors engage known barristers for this all the time; why not do the same with eDiscovery / eDisclosure providers? Why not, indeed, find a barrister who knows about eDisclosure?

Despite the Alabama opening context, the scene shifts to the UK, partly to emphasise that ignorance knows no boundaries, and partly to allow me to bring in barristers as a source of external skills. Syria, the Bismark and Tom Lehrer provide some backing material in an article about using skills and project partners to remedy imbalances of power and knowledge.

Ralph Losey’s article Poor Plaintiff’s Counsel, Can’t Even Find a CAR, Much Less Drive One tells of an Alabama law firm which entered into an eDiscovery agreement with opponents on terms, and using terms, which neither of them understood. It is hard to tell if Ralph was merely expressing sympathy by his reference to “Poor Plaintiff’s Counsel” or whether some ambiguity lurks in his choice of words. As he tells it:

The parties entered into a stipulation where each side agreed to use Computer Assisted Review (CAR) to search and produce documents to each other. You might assume these Alabama attorneys were pretty sophisticated, and ahead of the curve, to specify predictive coding. That is, after all, what most attorneys would think was intended by a CAR stipulation. But no. Nothing could be further from the truth. Read the rest of this entry »

eDiscovery in New Zealand – the requirements of the Discovery checklist

August 30, 2013

As in the UK and other jurisdictions, civil litigation in New Zealand is increasingly focusing on agreement and cooperation, enforced if necessary, between the parties as to the scope and execution of eDiscovery.

An article called Reinforcing the requirements of the discovery checklist on Andrew King’s NZ E-Discovery Blog summarises what those requirements are in New Zealand, listing the key points as identifying:

  • Who are the key individuals in the dispute;
  • What you have and where it is located;
  • What is important to the matter in dispute; and
  • How this information can be provided in a way which is accurate, efficient, and cost-effective.

It beats me how anyone, in any jurisdiction, can think it is possible to embark on any significant litigation without getting his or her head round this information, which seems to me no more than common sense.

Andrew King points to the use of an Electronic Documents Questionnaire as the model required in some UK litigation as a structured way of assembling and then exchanging the relevant information.


Information Governance: the way the wind is blowing

August 18, 2013

eDiscovery for litigation is important, but is only a part of the value which lawyers and eDiscovery providers can bring to corporate clients. The skills and technology developed to meet eDiscovery challenges can be applied to wider issues, some of which directly affect the cost and risk of eDiscovery as well as having value in their own right.

I have published 8,000 words this week, spread across 18 articles. Between them they cover a wide range of topics, countries and companies relating to the electronic discovery / disclosure of electronic documents: rules, technology and privacy have all turned up;  the UK, the US, and Hong Kong all featured, and you were spared a couple of articles about France which have not (yet) made it beyond draft stage. Coming too late for me to cover was an apparent attempt by US Judge Scheindlin to keep alive the fear of sanctions on which so many millions of dollars have been spent since her Zubulake Opinions. Is she a stern upholder of necessary standards or an outdated barrier to sensible and proportionate discovery? I will read the Opinion first, but the headlines by those who have read it suggest a certain lack of sympathy for this judicial rearguard action.

This volume of articles (sorry about that) is partly deck-clearing on my part, making way for what comes out of ILTA in Las Vegas in the coming week. It is partly a reflection of the breadth of interesting topics which connect to eDiscovery. It is partly a consequence of the busy-ness of the industry, when every day brings new developments, new products and new views which are worth passing on.

I have, however, barely mentioned one topic whose importance overrides all the others for the companies whose electronic data we are concerned with. Almost all the things which are seen as problems in litigation or in a regulatory or an investigations context spring from the volume of information which companies keep and for which many of them have no plans. It costs them a fortune, in storage, security and management, in eDiscovery obligations which strike them from time to time and because of the lost value which is tied up in information which no one can ever find. Read the rest of this entry »

Proactive use of technology-assisted review beyond litigation

August 16, 2013

Although the use of predictive coding / technology assisted review seems new to litigation lawyers, the concept behind it has been used for years and in a wide range of business applications. Reduced to its essentials, predictive coding takes a subset of source material and, through a mixture of human and technology input, identifies wider document sets by reference to the characteristics of the training set.

The application of this to litigation eDiscovery, to regulatory and internal investigation is obvious (or it jolly well should be), but the principles apply equally in other business circumstances where it is necessary for a company or its lawyers to identify things which may have impact later.

I use that neutral word “things” deliberately, because finding documents or other electronic sources is just the beginning of the enquiries which must be made – the technology is not an end in itself, nor is it enough merely to identify the right sources: what a company needs to know is what it should be anticipating so that contingency plans can be made to deal with it. That has application in, for example, company acquisitions where one company may need to assess both the value and the risk lying in email and other documents of another, or on a product launch, particularly in a high-risk area such as finance, healthcare and pharmaceuticals.

It is the latter area which is focused on by Laura Kibbe, Managing Director, Expert and Professional Services at Epiq Systems. Laura was Senior Corporate Counsel and Managing Director of the eDiscovery Response Team at Pfizer Inc before joining Epiq and has unrivalled experience of the pharmaceuticals industry both as client and as service provider. She is also one of the most eloquent advocates of the proportionate use of technology to business problems, as I said in my recent article about Hong Kong where we did presentations together.

Her article on Law Technology News, headed There’s More to TAR Than Litigation, has the subheading Proactive use of technology-assisted review could help Pharma and other industries manage risk.

Laura walks us through the steps which might be taken in undertaking a pre-launch risk assessment for a new product and for helping to identify potentially non-compliant behaviour once the launch is accomplished. Her focus is on the avoidance of compliance risk, on protecting privilege as the exercise proceeds, and on the combination of informed legal thoughtfulness and technology to achieve these exercises proportionately. It is as good an explanation as you will find of the wider application of this breed of technology and (crucially) of the human input and thoughtfulness which must accompany it.


Costs management – relief from sanctions under CPR 3.9

August 15, 2013

One of the things I had hoped to achieve before setting off to ILTA was a post pulling together what one knows of reports of relief from sanctions cases under Civil Procedure Rule 3.9 specifically relating to costs management and budgets.

I am relieved of this non-trivial task by the fact that costs lawyer Andy Ellis has written just such an article, published today by the Law Society Gazette with the heading Relief from sanctions in costs budgeting

The report is right up to date, including the main points made by Master McCloud in the “plebgate” libel action on which I wrote here.

You won’t find a better survey than Andy’s article of the factors which the courts are taking into account as they reconcile strict duty with fairness.


Establishing a uniform basis for eDiscovery costs projections

August 14, 2013

The article to which I am about to refer you may be the most important eDiscovery article you read this year. It is by Casey Flaherty, Corporate Counsel at Kia Motors America, and is called E-Discovery Costs Prediction: It’s Time to Share, with the sub-heading The big guns of EDD need to maintain a tool we can all use. His theme is the need for a uniform basis for seeking and receiving estimates of the costs under the various headings relevant to eDiscovery.

I have written before about a conference which I attended in San Diego earlier this year (see A packed agenda at the Information Governance and eDiscovery Strategy Exchange in San Diego). I was one of the chairman and moderators, and therefore had the opportunity to decide what I wanted to talk about and who should be on the panel. Among my panelists was Marla Bergman, VP and Assistant General Counsel at Goldman Sachs, on a session devoted to eDiscovery metrics.

Metrics – there’s a word to chill the bones of the arts graduates who become lawyers. I am one of those who chose law as a career in order to keep as far away from sums as possible. Marla Bergman’s main contribution was to explain how she keeps track of the costs of past cases and uses them to aid prediction for present ones. That goes beyond mere budgeting and into the case strategy (“Is this case worth fighting?”) and into the tactics in the sense that a lawyer who is manifestly on top of the costs, like one who is on top of the law, the facts and the documents, is in a position to overawe less well-prepared opponents and to impress the court which is necessarily dependent on the input from the lawyers. Read the rest of this entry »

ILTA and Rohit Talwar – a project to analyse technology disruption and change

August 14, 2013

ILTA is running a project on the impact of technology on legal practice, with the futurist Rohit Talwar. The results will be delivered at ILTA Insight 2013 in London in November.

After the ILTA / ALM technology conference in Hong Kong, I wrote a long article reporting on a speech made by futurist Rohit Talwar. I called it The Ghost of Legal Services Yet to Come – a Futurist tells of things that may be in which I pulled out of the speech those things which had the most obvious relevance to the foreseeable future for law firms and barristers.

That speech was my introduction to a project being run by ILTA (International Legal Technology Association) whose purpose is to analyse the effect of the potential disruption of technology and practice of law. The original press release about the project explains the ambitions for the project. The key areas for study are:

  • Key driving forces shaping business and the legal profession.
  • A timeline of future IT developments.
  • How to leverage IT advances that help enable and enhance tomorrow’s legal organizations.
  • Possible scenarios for the role and management of IT in tomorrow’s legal organizations.
  • IT imperatives specific to law firms, legal departments, and legal technology providers.

Monica Bay now brings us up to date about this in an article on the Law Technology News site called ILTA Charges Into the Future.

Many lawyers will dismiss such studies as having no relevance to their daily practice; they have letters to write, documents to draft, full InBoxes and next quarter’s rent to pay, and you won’t catch me underestimating the effect of all this on forward planning because I have much the same cluttering up my life.  There are, however, rival views as to whether law firms in their present form are doomed; every other industry makes its plans on the basis of the world as it will be next year and in three and five years time and there is no obvious reason why lawyers should approach their businesses differently.

The results of ILTA’s project will be delivered not in the US but at ILTA Insight 2013 in London on 14 November 2013. There is to be a strong eDisclosure / eDiscovery track at that event in which I am participating. Rohit Talwar’s keynote speech will be another reason for attending ILTA Insight (which, incidentally, has no registration fees).


Talking and listening in Hong Kong with Epiq and Consilio

August 13, 2013

I was back in Hong Kong recently, my third trip there in recent months. The primary purpose of this visit was to deliver a talk to the Hong Kong Academy of Law in the company of Epiq Systems. I went to some law firms with Epiq and visited a couple of companies in the company of Consilio, who also arranged  a first-rate dinner. The result of a short visit is necessarily a snapshot, but that was my third such snapshot in a few months and they accumulate in value. It is a place which bears multiple visits.

The title of the talk at the Hong Kong Academy of Law was The Intersection of Law and Technology in eDiscovery. I shared the stage with Laura Kibbe, Managing Director of Expert and Professional Services at Epiq Systems – a treat for me, this, since Laura is one of the clearest exponents of the use of technology in discovery. We were introduced by Nick Chan, a partner at Squires Sanders in Hong Kong, who had arranged the invitation.


My role was to talk about the development of rules and practice in a range of jurisdictions which require civil discovery and (as the title of our talk implies) to show how technology developments and practical compliance with the rules intersect with and complement each other. By “complement”, I really mean that proportionate and defensible discovery cannot properly be given in compliance with the rules of any jurisdiction without at least some understanding of the available technology. The fact that the rules may not specifically require this (as is the case in Hong Kong) is really neither here nor there – there is a set of obligations to fulfil in relation to documents, and if nearly all those documents are electronic, then electronic means must be used to find and classify them if the costs of discovery are not to become completely disproportionate to the objective. Read the rest of this entry »

Germany moves to restrict US data transfers as PRISM concerns grow

August 12, 2013

Buried deep in my article Cross-border discovery and privacy gaps widen thanks to PRISM and trolls was a reference to an article by Hunton & Williams called German DPAs Halt Data Transfer Approvals and Consider Suspending Transfers Based on Safe Harbor, EU Model Clauses.

I should, perhaps, have put that at the top of my article, because it is probable that its significance – which appears clearly from its heading – may have been missed in amongst the other topics covered. It was, perhaps, the most important single thing in what was a long article.

Those who find it necessary to collect data for the purposes of US civil litigation, or in order to comply with a regulatory requirement, are used to the difficulties which are posed by the conflict between broad US discovery requirements and EU restrictions. The general message, from me at least, is that almost anything reasonable is possible, provided that the legal and technical difficulties are identified promptly and shared with opponents, courts or regulators, and provided that technology is used in-country to identify and filter out personally identifiable information (PII), both prerequisites for any attempt to win agreement from the demanding party, or obtained from the court by reference to the adequacy of the steps taken.

The threat from the German data protection authorities raises the game somewhat. The apparent restrictions extend beyond the personally identifiable information which is the usual concern, and to all data as a result of fears about US analysis and the use which might be made of it. Read the rest of this entry »


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