AA v Southwark – local authority’s non-disclosure rounds off an appalling story

October 15, 2014

Most of the judgment in AA v London Borough of Southwark is about the appalling conduct of a local authority towards one of its tenants. That alone would not warrant a place in this blog, but there were procedural issues which matter for those in charge of disclosure in civil proceedings. Disclosure is a continuing obligation, and you don’t suppress material just because it is unhelpful (or in this case “damning” and “detrimental”). Phone records may also be caught by the broad definition of a disclosable document.

I am, as you may have gathered, no great enthusiast for local authorities and the people who run them. It is not merely that they are, by and large (there are of course exceptions) run by overpaid, stupid people performing their tasks badly and pissing public money up against the wall, but that the mantle of petty authority which falls on these generally inadequate pen-pushers turns them into tyrants. Little people with clipboards instead of brains somehow think that they are immune from general rules of decency and politeness, quite apart from the law or anything else.

It may be an extreme case, but the judgment in AA v The London Borough of Southwark demonstrates what I mean. As well as the judgment (or perhaps instead once you get past the opening paragraphs) have a look at Gordon Exall’s usual succinct summary with the title Lies, evidence, disclosure and procedure. When you have recovered from being appalled at the way Southwark’s housing officers behaved towards its refugee tenant, have a look at the procedural points which are relevant to disclosure in any civil claim. It is, as Gordon Exall says, “as excoriating a judgment as you are likely to read in relation to disclosure and witness evidence”. Read the rest of this entry »

Keeping one’s eye on the ball

October 10, 2014

The scene: the eye clinic at the John Radcliffe Hospital, Oxford. The time: 9.00am. The plan: a quick inspection following a referral from my optician, then back to my desk. The outcome: “Nothing to worry about, but we’ll just put you into the theatre list for today. The list is full, so you may have to wait all day”.

So: what would you make of that? It’s not a problem, and our operating list is already full, but we think we ought to deal with it today. Suddenly, a 30 minute appointment – say an hour out of the office in all – turned into a full day sitting in a waiting room followed by…..to be honest, it makes me slightly queasy to think about it, so I will spare you the details, save to say that it involved the equivalent of spot welding by freezing round the back of the eyeball.

I am squeamish. I don’t have a tooth filled without being sedated first. What I do have, however, is a mother who treats her all-too-many hospital inspections as if they were an extension of the Blitz (“We can take it”), and a mother-in-law who has regular injections into the eye. If they can cope, then so can I.

I’ll make a recommendation though: if you suddenly find “floaters” across your eye, as many do after a certain age, go and get them looked at. For most, they settle down – they are not illusions but physical bits floating around in the eye. Mine, as it happened, involved a small tear, and the hospital’s concern was that small tear might become a bigger one – thus the urgency, followed by a day of feeling distinctly off-colour, to say nothing of blurry-eyed.

With that fixed, sort of, I could get back to the queue of interesting things which had been piling up. Read the rest of this entry »

Two weeks at Office-by-the-Sea in Cornwall for projects and preparation

October 7, 2014

This post began as an apologia for the fewness of my posts over the last three weeks. I don’t actually feel very guilty about it and achieved, among other things, a project – a short video about Browning Marean which you will find below. Nevertheless, in case anyone wonders why my various sites have been short of commentary, reports and announcements, this is what I have been doing. It is all good preparation for what promises to be an interesting Autumn.

You may have noticed that my generally steady flow of eDiscovery- / eDisclosure-related posts on this site and on chrisdaleoxford.co.uk tailed off over the last three weeks. That is not because there was nothing to report – far from it – but because I was in Cornwall, followed by a week with three events which kept me from my desk.


DeskViewWe go to Trebetherick, where my wife, Mary Ann, has been going since she was an infant, taking a house big enough to be Office-by-the-Sea for me while being filled with whichever of our children wants to come and other visitors. Mary Ann and the guests went off on jaunts all over Cornwall. I stayed put for the whole fortnight. The video below begins with a zoom sequence which shows a place as close to paradise as you can get.

Stuck up in our hall is a cartoon which Mary Ann cut out 20 or so years ago showing a businessman on a seaside holiday with the punchline “Only another six days to go”. That is not in fact my view of holidays generally. I spend enough weekends sitting at airports or on planes, staying in lonely hotels and eating at Starbucks, not to feel too guilty about a few days away, but what I find difficult is being out of the stream for a long period when everyone else is at work. For the most part, I can work from anywhere; the only downside was having to turn down three speaking invitations which I would rather have accepted. Read the rest of this entry »

ILTA 2014: The cloud for companies and celebs alike

September 16, 2014

The talk at ILTA this year was not so much about giving discovery from the cloud but about a more fundamental question – should we be putting data in the cloud at all? The standout session on this discussed a cyber attack on Saudi Aramco in which data was lost from 30,000 computers and servers in one day around the world.

Would the data have been safer in the cloud? Conventional wisdom (by which I mean the instinctive feel for many businesses and individuals) is against doing that, with the NSA and Chinese hackers seen as the primary source of risk. Against that, it is observed that the top cloud providers invest sums in security beyond the reach of most companies, building defences which few businesses can aspire to. There are no answers here, but the thinking is evolving beyond the unsubstantiated assertions of gut instinct.

Since ILTA, we have seen news of the wholesale theft of celebrity data. The focus has been on what the newspapers like to call “nude selfies”, that being the stuff of headlines. If I were the celebrity, I would be more bothered about some of the other data which will have been swept up at the same time – the contact and calendar information, financial details and, not least, the GPS information embedded in many of those photographs which show where they were taken. Read the rest of this entry »

ILTA 2014: Diversification the key for litigation support vendors

September 10, 2014

This is one of a set of posts about the content and the discussion at ILTA 2014 in Nashville. Originally intended as a single post, the result was too long for that and I decided to split them up. See also ILTA 2014 – the context and the logistics.

I remember an ILTA of long ago – 2008, perhaps, or 2009. There were lots of shiny new stands there – small ones on the whole, with unfamiliar names, manned by people I had never seen before. I had a sudden chill feeling, a certainty that most of these fledgling companies wouldn’t last till Christmas. I recall none of their names now.

Many eDiscovery businesses have gone since then, swallowed up by others or just disappeared. A few have arrived, mostly selling litigation support services, though a couple of new software companies have defied predictions (mine included) and seem to be thriving through a combination of good product and good marketing.

Eddie Sheehy of Nuix looks at the future of litigation support vendors in the context of ILTA 2013 in his article 5 pathways for successful litigation support vendors in 2014.

The number of customers is not growing, he says, so companies can only increase their market share at the expense of others. Apart from obvious things like a record of solid competent performance at good prices, LSVs need to add value by providing new and collateral services. Read the rest of this entry »

ILTA 2014 – the context and the logistics

September 8, 2014

This post is about ILTA the event – the organisation and the experience of being there. I will write separately about the legal technology subjects which came up in the sessions and in discussion. August 1914 is my starting point for August 2014, allowing me to make comparisons between the book I am currently reading and the organisation of ILTA. If you lack the time and the patience for my comparison between the preparations for war and the planning for ILTA, jump down to the heading The logistics of ILTA.

August1914My book for the journey was August 1914 by the respected American historian Barbara Tuchman. I know how the story ends, not least because I have read the book twice before, but Tuchman manages to invest the familiar with an atmosphere of suspense as the decisions are made – to advance, retreat or dig in, to march this way or that; you read it with hands metaphorically over your eyes as pig-headedness, personal animosities and lack of intelligence (in both senses) lead inexorably to four years in the trenches, with most of France’s coal and iron production left in German hands.  Many of the mistakes had been made long before the war – mistakes of diplomacy, of judgement and, most particularly, of procurement and supply as the Allies prepared to fight the last war; generals are always getting ready to fight the last war.

Armies in 1914 to lawyers in 2014

This is not, as you may think, a precursor to an analysis of the parallels between the armies of 1914 and the lawyers of today, much as I like that kind of example. You do not have to look far to find them. French generals refused to discard the pantalons rouge which made soldiers an easy target; they disdained heavy artillery as being inconsistent with the élan expected from a philosophy which knew only of attack, and they made no provision for entrenching tools for the same reason – only defenders needed to dig in and defence was not on the agenda; newfangled aeroplanes were rejected. Meanwhile, the British Liberal government invested reluctantly in Dreadnoughts but declined to spend any money on dry docks big enough for them or on shore defences for naval bases. The parallels with the way some law firms prepare for doing business in 2014 are obvious – predictive coding anyone? Read the rest of this entry »

Browning Marean: the tributes pour in

August 26, 2014

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

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

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

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

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

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

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

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

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

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

There is a set of my photographs of Browning here.



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